Determination of Meaning
The meaning of the words complained of in a publication whether a newspaper article, book or email is at the heart of a defamation claim. A newspaper article or excerpt of a book that is being complained of may have several different meanings understood in different ways by different people. A newspaper article read by 1 million readers will have a host of meanings. The court however is required to decide on a single meaning of the words complained of, and of each distinct allegation within the words complained of.
Lord Diplock said in Slim v Daily Telegraph [1968] 2 QB 157,
“What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is ‘the natural and ordinary meaning’ of words in an action for libel.”
The natural and ordinary meaning of words is the meaning that the words would convey to the ordinary reasonable reader who reads the entire article or publication once.
Mr Justice Nicklin in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) distilled the main principles from the authorities that apply to the determination of meaning by the court.
- The main principle is reasonableness.
- The intention of the publisher is irrelevant.
- 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 not be avid for scandal and not select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning when a less serious meaning is available is not reasonable. To always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
- When deciding on a meaning an over-elaborate analysis should be avoided, and the court should not take a too literal approach. Any meaning that is strained, or forced, or an utterly unreasonable interpretation should be rejected. It is not enough to say that by some person or another the words might be understood in a defamatory sense.
- To determine the meaning, it is necessary to consider the context in which it appeared and the mode of publication.
- Evidence is not permitted beyond the publication complained of. The judge will only look at the article.
- 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.
- 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.
- 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 (it cannot find a meaning that is more injurious than the claimant’s meaning).
- The reader will be taken to read the whole article, even if that may not always be the case, so that they will take account of the “bane” and any “antidote” within the article. The bane being the potentially defamatory allegation, and the antidote those words which show the reader that it is untrue or take away the defamatory meaning. A headline might suggest guilt of an offence to grab the reader’s attention though if the reader reads the rest of the article it might make clear that was not the case. As a matter of principle, there can only be one ordinary meaning so one meaning to be found for just the headline and pictures, and another for the article as a whole, would go against this principle. For online publications there may be argument over identifying the “whole article”. A headline might appear in google search engine which is defamatory, and the reader would then click through to read the article and find the antidote. It is likely the court would expect the reader to take that step. What however if the google link was to an article where you are able to read the article headline but not the whole of the article as the website is” subscriber only” as would be the case in newspapers such as The Times or The Telegraph. Is the reader to see the antidote expected to subscribe to the publication, provide their credit card details and then read the antidote?
Repetition rule
Anyone who repeats the statement of another is treated for the purposes of meaning as having made the original statement themself.
Chase levels of meaning
Where the claimant considers that the meaning is an allegation that he is involved to some degree in wrongdoing the court will determine the level of seriousness of the allegation by reference to three levels of meaning, referred to as Chase level meanings which identified three levels of gravity:
These levels were summarised by Mr Justice Nicklin in the case of Brown v Bower and anr [2017] 4 W.L.R. 197 at 17. The Chase levels came from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, para 45. Brooke LJ identified three types of defamatory allegations:
1.The claimant is guilty of the act.
2.There are reasonable grounds to suspect that the claimant is guilty of the act.
3.There are grounds to investigate whether the claimant has committed the act.
Nicklin J went on to say that these levels are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. He referred to the case of Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB), in that case Gray J found a meaning of cogent grounds to suspect.
Determinations on meaning
It is standard practice now that either party can apply for a ruling by the court on the meaning of the words complained of. This deals with the issue at an early stage and saves costs and may often lead to settlement or disposal of the action. A hearing to determine meaning should be held at an early stage and before service of the defence if the meaning is in dispute. A party who seeks to resist such preliminary determination will expose themselves to a considerable risk on costs.
The claimant’s objective is to obtain a level of meaning that the defendant will not be able to meet by its defence. The defendant may seek a meaning to be determined where they consider the claimant’s meaning too high in its seriousness.
Recently, even formal hearings have not taken place and the meaning of a publication has been determined without a hearing, based on the parties’ written submissions.
To ensure open justice the court adopts the following procedure:
- The court will consider written submissions of the parties and then prepare a judgment to be handed down.
- The draft judgment is circulated to the parties.
- The case is then listed in open court, for judgment to be handed down. At that hearing when judgement is handed down the court would make available all written submissions considered, together with copies of the judgment.
Costs in the case on meaning applications is now following a recent decision likely to be the standard order except in exceptional circumstances.
In the case of Sharif v Associated [2021] EWHC 343 (QB) (05 February 2021) at para 44 Mr Justice Nicklin stated:
“I do not know ultimately who is going to be successful in this litigation at any trial. Even if it were possible to detect a clear ‘winner’ on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage. Although that party might have ‘lost’ the meaning issue, the party may yet ultimately ‘win’ at trial. In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action.”