Uppal v Endemol UK Ltd

The Claimant was a model, actress, former Miss India UK and contestant in the 2012 series of “Big Brother”. The Defendants were the producer of Big Brother (Endemol), the broadcaster of Big Brother (Channel 5) and Conor McIntyre, a fellow Big Brother housemate. The status of the proceedings against McIntyre were not clear at the time of the hearing.

The claim arose in respect of broadcasts of two events from the Big Brother House during which McIntyre, holding a hair brush, used abusive language in a rap directed at C (see [6]) and two other housemates made fun of C for allegedly eating milk and cereal with her hands (see [9]-[10]). In both cases, the contestants were shown later going into the Diary Room, to be reprimanded by Big Brother for their unacceptable language and behaviour.

C alleged that the words uttered in the broadcasts were defamatory, pleading that they meant “that the Claimant had below average intelligence“; “alternatively that the Claimant is in some way socially or intellectually inferior“, “that the Claimant was sexually promiscuous” (said to arise from the way in which the hair brush was used) and “that the Claimant was in some way socially or intellectually inferior to the other housemates because she was of Indian origin or descent“.

Endemol and Channel 5 brought an application seeking a ruling that (a) the words complained of were incapable of bearing such meanings; (b) were not capable of being defamatory of C and (c) summary judgment be granted against C on the defamation claim.

Endemol and Channel 5 also sought an order that C provide further information about her claim against them for breach of a duty of care and breach of contract. The application was agreed but a costs dispute remained outstanding (see [30]-[31]).

Whether the words were capable of bearing a defamatory meaning.

Finding for the Ds and dismissing the defamation claim: neither of the broadcasts were capable of bearing the meanings alleged by C, or any other meanings defamatory of C:

Relevant legal principles

Dingemans J began by setting out the principles for determining meaning, namely:

• The 8 points summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14];
• That the reasonable reader, and by extension the reasonable viewer, is now perceived by the courts as having a stronger stomach and more discriminating judgment than was traditionally recognised, Lukowiak v Unidad Editorial (No.1) [2001] EMLR 46;
• That a statement should be taken to be defamatory if it would tend to lower C in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally, Skuse v Granada Television Limited [1996] EMLR 278;
• To be counted as defamatory, an allegation must pass a certain threshold of seriousness, Thornton v Telegraph Media [2011] 1 WLR 1985;
• It was common ground that insults or abuse are not actionable unless they contain defamatory imputations. Dingemans J noted the comment made by Millet LJ in Berkoff v Burchill [1996] 4 All ER 1008 that whilst certain insults might be held to be defamatory because they would cause a person to be held up to contempt, scorn or ridicule,it was one thing to ridicule a man; it was another to expose him to ridicule.

The broadcasts

McIntyre’s rap was not capable of meaning that C had below average intelligence or was socially or intellectually inferior. The words did not reflect on C’s social or intellectual status. The use of the words was vile abuse, but not defamatory. The rap may have been McIntyre ridiculing C, but was not capable of exposing C to ridicule. Further, the broadcast had to be seen with any “bane and antidote”, which included Big Brother’s condemnation of McIntyre’s remarks. Any reasonable viewer would have understood that the person whose reputation might have been adversely affected by this was the person who made up the rap, not C.

The rap was also not capable of meaning that C was sexually promiscuous. All that could be discerned from the broadcast was McIntyre’s rap about what he apparently wanted to do to C, no reasonable viewer could have though that C would have been a willing participant in any such activity.

As to the ‘milk and cereal’ exchange, the words were not capable of meaning that C was socially or intellectually inferior to the other housemates because of her Indian origin or descent. Such offensive racial stereotyping was a reflection on the other housemate not on C. The words were not capable of bearing any other meaning defamatory of C.

The decision provides a both useful and brief consolidation of the well-established legal principles on meaning. It is also a reminder that those pleading somewhat strained meanings should proceed with caution, particularly where the words complained of are insults. Ridiculing someone is not to be equated with exposing that person to ridicule.