Donovan v Gibbons [2014] EWHC 3406 (QB)
The case of Donovan v Gibbons [2014] EWHC 3406 (QB) (21 October 2014) concerned a polo pony known as Lady Gaga. The Claimant ran a business called AD Pharma Consulting Ltd which traded as PharmaPoloPonies and, through that company, ran a business dealing in polo ponies.The pony was subsequently sold to the Defendant. However, the Defendant was not happy with the pony and wanted the Claimant to take the animal back, which she refused to do.
The Defendant made arrangements for two videos, which carried the titles Pharma Polo and Pharma Polo 1, to be shown on YouTube in February 2013. The subject of the videos was the polo pony shown rearing up with the words on the caption reading ‘Pharmapoloponies.com Louisa Donovan sold this polo pony as being suitable for children. Downright dangerous and a scandal they get away with this’. A third video was then uploaded in June of that year showing the same recording and title which remained up for viewing until the end of February 2014.
The Claimant subsequently sued in libel citing that the videos were defamatory of her. The Defendant’s response was that they were honest comment.
Master Eastman on the 28th July 2014, with the consent of both parties, made an order that a Judge should determine the meaning of the words and the pictures which were the subject of the complaint and to determine whether they were allegations of fact, opinion or comment.
The Claimant asked Justice Parkes, contingent upon how the meaning of the words and pictures were determined, to further strike out the paragraphs relating to the Defendant’s defence of honest comment or opinion. Mr Justice Parkes referred to the defence the Defendant had sought, which was, that which had been complained of by the Claimant was merely the Defendant’s opinion, the pony sold to her was dangerous and not suitable for children which the Defendant had demonstrated in the videos.
The case of Yeo v Times Newspapers Ltd was drawn to the attention of Mr Justice Parkes by both Counsels and he referred to paragraphs 84 to 98 as to the following principles:
- The statement must be recognisable as comment as distinct from an imputation of fact: Gatley para 12.7;
- Comment is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc”: Branson v Bower [2001] EMLR 15 at [26];
- The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams Press [1958] 2 QB 275, 313;
- The subject matter and context of the words may be an important indicator of whether they are fact or comment: Singh, above, at [26], [31].
He said that
“In this case, the dangerousness of the pony is clear from the videos, which show the animal bucking and rearing. That is a given. Coupled with the first sentence of the words complained of, that tells the viewer that the claimant sold a dangerous polo pony as being suitable for children.
There is therefore a defamatory allegation of fact: that the claimant sold a dangerous pony as being suitable for children (ie the ‘business’ defamation, considered above). That, I think, is correct. I have said already, I have no difficulty in characterising that allegation as an allegation of fact”.
Mr Justice Parkes continued in his judgment by saying that the definition of meaning had been established in the case of Jeynes v News Magazines as follows:
- The governing principle is reasonableness.
- The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
- Over-elaborate analysis is best avoided.
- The intention of the publisher is irrelevant.
- The article must be read as a whole, and any “bane and antidote” taken together.
- The hypothetical reader is taken to be representative of those who would read the publication in question.
He then continued by questioning whether the videos and the text went further by imputing knowledge to the Claimant that the polo pony was dangerous and unsuitable when the sale took place. His view was that the ordinary reasonable person who had viewed the videos would have believed that the Claimant had sold the Defendant a dangerous pony saying that it was suitable for children when all along she knew it was not at all suitable for children thus,
“That conduct would plainly entail a reckless preparedness to put the children at risk”. He continued by saying “ I find that the true meaning of the material is that pleaded by the claimant.(the claimant recklessly and callously placed the safety of children at risk by selling a dangerous pony as being suitable for use with children when she must have known it was not.)
He thought it unarguably defamatory of the Claimant in a personal, as well as a business, sense.