Sahota v Middlesex Broadcasting Corporation Ltd & Ors [2021] EWHC 504 (QB)

In Sahota v Middlesex Broadcasting Corporation Ltd & Ors, before Mrs Justice Steyn DBE, a claim in defamation was brought in relation to the broadcast of a live television discussion programme named Gurdwara Miri Piri (‘the programme’) which aired on 29th January 2018 by Mr Sahota (‘the Claimant’). The claim was  brought against three defendants; the broadcaster Middlesex Broadcasting Limited (‘the First Defendant’), the presenter of the programme, Mr Bharj (‘the Second Defendant’) and his guest Mr Bal (‘the Third Defendant’). The live discussion centred around issues arising out of a recent protest outside the Indian Embassy. The programme was broadcast in Punjabi and was an hour in length.

The Claimant is described as ‘a successful businessman, a devout Sikh, and a prominent advocate of the rights of Sikhs in the Punjab to self-determine in an independent state of Khalistan’. Further  he is a prominent individual in the Sikh community in Birmingham, nationally and internationally. He was appointed to the World Sikh Parliament and served as the President of the Council of Khalistan.

The Preliminary Issues

Mrs Justice Steyn DBE determined preliminary issues in the case which included (1) the natural and ordinary meaning of the words complained of in relation to the second and third defendants but also as a whole; (2) whether those meanings were defamatory; (3) which parts of those meanings were statements of facts and which were statements of opinion; and (4) whether those determined as opinion, indicated the basis of the opinion.

The matters were determined without a hearing, on written arguments put before the court by Counsel for parties. Mrs Justice Steyn DBE approached the assessment by first watching the television programme to gain an impression followed by reading the English written transcript as the programme was in Punjabi, and then noting down her initial views on the meaning of the words complained of. Thereafter, the Judge reviewed Counsel’s arguments and concluded with a final review of the material subject of the claim.

Meaning

The meaning of words complained of is assessed on what the ordinary reasonable viewer of the programme considers the words to mean. Care must be taken not overanalyse those words. The principles to consider were set out in the case Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) . Reference below to the reader should be replaced by the word viewer in relation to broadcasts as in this case.

“i)  The governing principle is reasonableness.

ii)  The intention of the publisher is irrelevant.

iii)  The hypothetical reasonable reader is not naïve 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. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

iv)  Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

v)  Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.

vi)  Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.

vii)  It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

viii)  The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).

ix)  In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

x)  No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.

xi)  The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership.

xii)  Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.

xiii)  In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant’s pleaded meaning).”

Mrs Justice Steyn DBE followed the guidance set down in relation to television programmes and in particular foreign language television broadcasts when assessing meaning. The court must determine the natural and ordinary meaning conveyed to the ordinary reasonable viewer watching the programme in the year it was broadcast and be mindful of the type of audience based on the type of television programme.

Considering an hour long television programme will leave an impression upon the viewer and whilst the test of ascertaining meaning is objective it is accepted that it is likely the Judge will take his or her own subjective view into account when carrying out the assessment; however, overly analytical analysis should be avoided, rather the ‘overall flavour’ should be taken into account as the way in which the spoken word is expressed often affects the way in which the audience understands the meaning, and not necessarily be the same as the written text.

Guidance was set out in Shakil-ur-Rahman v Ary Network Limited [2015] EWHC 2917 (QB), the approach to take was set out step by step which included:- (1) the Judge should watch the broadcast with the translated text at hand, to gain an impression of the tone and structure of the programme as well as to the style and approach of the participants (2) read the translation in full to gain an initial impression of the meaning (3) consider Counsel’s arguments (4) watch the broadcast again with the translation and the notes of the initial impression as to meaning, amending it if necessary.

Mrs Justice Steyn DBE adopted this approach but noted the difficulties of assessing meaning on foreign language broadcasts ‘through the filters of, first a transcript of what was said orally and secondly, a translation of that transcript’.

The Judge considered the programme taking into account the format, being the second and third defendants sitting across a table from one another holding a live discussion on their views of a group of individuals who were protesting at the Indian Embassy. The discussion included criticism of an individual who was not subject of the claim however the Judge would review a reference to his ‘partner’ to refer to the claimant on this occasion only, without prejudice to the Defendants general position that reference remained in issue if the matter continued after this trial on the preliminary issues.

Viewers could call into the programme to provide their opinion as there was a telephone number scrolling along the bottom of the screen, one individual did telephone into the programme during the hour long programme. It was noted that the programme was difficult to follow and that the viewers would have watched the programme once, and not on repeat as the Judge would be able to do when ascertaining meaning.

The Claimant selected words from the programme he considered were defamatory of him, not all of the words over the entire hour long programme. The Claimant asserted five defamatory meanings for the words complained of, rather than one single meaning, which he said were presented to the viewer as bald imputations of fact. The Defendants adopted the same approach, suggesting five non defamatory meanings for the words complained of, on the basis that they were opinion or they were not likely to lower the opinion of the claimant in right thinking members of society.

Defamatory

In the recent case of Ameyaw v McGoldrick [2020] EWHC 3035 (QB) Warby J set out the definition of what is defamatory at common law;

“A meaning or imputation, whether it be one of fact or opinion, is defamatory only if it would tend to have a substantially adverse effect on the way that right- thinking members of society generally would treat the claimant”

Mrs Justice Steyn DBE determined that 3 out of the 5 meanings were defamatory and two were non defamatory. Those defamatory meanings were determined as less serious than put by the Claimant

Meaning One

This meaning related to words expressed by both the Second and Third Defendants.

The claimant stated the meaning to be that he: “misled and deceived the Sikh community”.

The Defendants’ first meaning is that the Claimant had: “as one of only a very small number of Sikhs visibly and loudly protesting for Khalistani independence in front of the Indian Embassy, given the misleading impression that he was representing the views of the British Sikh community generally”.

The italicised words are those the Defendants contend were a statement of opinion.

Mrs Justice Steyn DBE considered both meanings advanced and rejected the Claimant’s view that the words meant he deceived the Sikh community specifically; rather, it was unclear which group the claimant was accused of deceiving. The defendants view that the deception related to a small number of protesters and such deception was unintentional, was also rejected by the Judge. She accepted the basis of the allegations of deception would not have been clear to the viewers except that it would be clear it related to the protest. The allegations were expressed as a bald statement of fact; the viewer wouldn’t have understood what extraneous facts were relied on to support the allegations. This meaning was determined as defamatory.

Meaning Two

This meaning related to words expressed by both the Second and Third Defendants.

The Claimant’s second meaning is that the Claimant:  “b) was venal, mercenary and a hypocrite. Whilst purporting to support Khalistan independence in reality he was an agent in the pay of Lord Nazir Ahmed promoting the interests of Pakistan against India where previously he had been in the pay of Indian nationalists.”

The Defendants’ second meaning is that the Claimant: “by displaying square yellow flags supplied by Lord Nazir Ahmed (a Muslim) in place of the Nishan Sahib (the Sikh holy flag), [D2] created a new separation between Sikhs, greatly disrespected the Sikh religion, acted in a manner that was very wrong and the most religiously wrong thing he had done; and as such did not deserve to be called a Sikh; [D3] had thereby brought disrespect upon Sikhs and acted shamefully”.

The italicised words immediately following “[D2]” are those the Defendants contend are a statement of opinion by the Second Defendant and the italicised words following “[D3]” are those they contend are a statement of opinion by the Third Defendant.

Mrs Justice Steyn DBE substantially agreed with the meaning advanced by the Claimant save for three points. The Judge substituted the word ‘mercenary’ in the Claimant’s meaning for the word ‘hireling’; that inferred opinions have no place is the assessment of meaning; and the Judge agreed with the Defendant that the ordinary reasonable viewer would not take the meaning as the Claimant promoted the interests of Pakistan against India.

Meaning Three

This meaning related to words expressed by both the Second and Third Defendants.

The Claimant’s third meaning is that the Claimant: “fomented division, hatred and violence between Sikhs and Indians, and between Indians and Pakistanis.”

The Defendants’ third meaning is that the Claimant: “protested for Khalistani independence when financially assisted in doing so by Lord Nazir Ahmed, yet had not promoted the Khalistani cause when he had previously operated a television station, and therefore his position on Khalistan independence appeared to depend upon financial support from others”.

The italicised words are those the Defendants contend are statements of opinion.

The accusation that the Claimant changed the colour and shape of the Sikh flag was asserted as fact and the remaining words were expressions of opinion. Mrs Justice Steyn DBE determined that the Claimant’s reputation would not be lowered I the eyes of right thinking members of society therefore was not defamatory at common law.

Meaning Four

This meaning related to words expressed by both the Second and Third Defendants.

The Claimant’s fourth meaning is that the Claimant: “promoted terrorism”.

The Defendants’ fourth meaning is that the Claimant: “by promoting this [Khalistani independence] cause and protesting in this manner against the Indian government, at the same event as much larger groups of rival protestors (including Pakistani and Indian Kashmiri protestors, Kashmir having been the subject of numerous terrorist attacks driving huge numbers of people from their homes), risked, if he did not stop, dividing the Sikh community and involving Sikhs in violence, hatred and terrorism”.

The italicised words are those the Defendants contend are statements of opinion.

Mrs Justice Steyn DBE did not accept the defamatory meaning asserted by the Claimant but did nevertheless find a defamatory meaning at common law. The serious allegations were largely pointed at an individual not subject of the claim therefore found a less serious defamatory meaning. There was a statement of fact but the remaining were expressions of opinion.

Meaning Five

This meaning related to words expressed by the Second Defendant alone.

The Claimant’s fifth and final meaning is that the Claimant: “exploited the sacred Guru Granth Sahib Ji for financial gain”.

The Defendants’ final meaning is that the Claimant: “was a member of a family which had been ordering the Guru Granth Sahib from India through their business.”

The Claimant relies on the fact that this statement was prefaced with the charge that the Claimant had been deceiving people and had spread lies. So, the reasonable viewer would have understood that, according to the Second Defendant, the Claimant would (and did, as a matter of fact) exploit sacred scriptures for financial gain.

The Defendants’ submits there is no reference to any “exploitation” by the Claimant or any financial gain by him, as opposed to being a member of a family who ordered the Guru Granth Sahib from India through their business. Nor is there any explanation of what the Guru Granth Sahib is, whether in the Programme or in any innuendo pleading.

Mrs Justice Steyn DBE found that the use of the word ‘business’ conveyed to the viewer that the claimant has commercialised sacred Sikh scripture in making profit by its sale. The defamatory meaning asserted by the Claimant was rejected, the Judge determined that this statement was non – defamatory.

Statement of Fact or Opinion and the basis of the Opinion

In order to determine whether the words complained of contain allegations of fact or opinion, the following principles are applied from the case Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB):

i) First, the statement must be recognisable as opinion, as distinct from an imputation of fact.

ii) Secondly, opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.

iii) Thirdly, the test is an objective one and the ultimate determinant is how the words would strike the ordinary reasonable reader.

iv) Fourthly, the subject-matter of words and their context may be important indicators of whether they are fact or opinion.

v) Fifthly, not every inference counts as an opinion: context is all. The bare statement of an inference, without reference to the facts on which it is based, may well appear as a statement of fact. Whereas the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader or viewer as an expression of opinion.

Mrs Justice Steyn DBE determined that there were three statements of opinion within the determined meanings and that those indicated the basis of the opinion; therefore, were not actionable in defamation.

Conclusion

Mrs Justice Steyn DBE’s confirmed her initial impression of the meaning was reflected in her final determination and she italicised those sections which she determined as opinion. The meanings of the words complained of were determined as follows, with the statements of opinion italicised below:

i) By his protest, the Claimant deceived and misled people.

ii) The Claimant is not a true supporter of the independence of Khalistan, as he purports to be: he is a hireling whose allegiance can and has been bought. When he ran a television station, he failed to support the Khalistani cause but now he does so because he is in the pay of Lord Ahmed.

iii) Nor is he a true Sikh: no true Sikh would show such disrespect for the Sikh religion, as the Claimant did by changing the colour and shape of the Nishan Sahib from saffron and triangular to a yellow square.

iv) The Claimant, by standing with Kashmiri terrorists in London, showed his ignorance of history and the rights of Sikhs, and risked, if he did not stop, dividing the Sikh community and involving Sikhs in violence, hatred and terrorism.

v) The Claimant and his family commercialised the sale of the sacred Guru Granth Sahib.

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