Thornton v Telegraph Media Group Ltd

The Claimant (C) was the authoress of a non-fiction book, ‘Seven Days in the Art World’. She sued the publishers of the Daily Telegraph (D) for libel and malicious falsehood on a review written by Lynn Barber. One of the allegations complained of arose out of the following passage: ‘She [ie C] also claims that she practices “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove’. D contended that the words complained of were honest comment on a matter of public interest. C applied to strike out the defence.

Whether the defence of fair comment should be struck out on the ground that, even if the passage as a whole was capable of being regarded as comment, the facts on which the comment was based had not been truly stated.

The defence should be struck out. The words in the first sentence about C’s giving her interviewees the right to “read what she says about them and alter it” might be regarded by a jury without perversity as being the reviewer’s expression of opinion about C’s methodology. However, the defence was bound to fail because the passage contained a clear and material misstatement of fact: C had not given her interviewees any such right, and the review significantly misdescribed what C had said in the Acknowledgments section of the book in this regard. In these circumstances, notwithstanding D’s reliance on other passages of the book as arguably supporting the comment, there was no realistic possibility of s.6 of the Defamation Act 1952 availing.

The decision is a salutary application of the long-established rule that requires a reviewer not to misstate the facts or misrepresent the work upon which she expresses her opinion. A critic may dip her pen in gall, but not in falsehood.

The Court of Appeal refused the Defendant permission to appeal on 13 January 2010.