KB-2022-003483 - [2025] EWHC 1912 (KB)

The approach to determining meaning as a preliminary issue is well established. The judge reads or watches the offending publication to capture an initial reaction before reading or hearing the parties’ submissions: Millett v Corbyn [2021] EWCA Civ 567, [2021] E.M.L.R. 19 (“Millett”) at para 8. Where, as here, the publication is in another language, the Court cannot glean the meaning simply by watching the recordings; instead it is necessary to rely upon the translated transcript(s), although this inevitably means that the Court does not have the benefit of gaining the immediate impression that the words and images would have had on the hypothetical viewer. In Shakil-Ur-Rahman v ARY Network Limited & Ghafoor [2015] EWHC 2917 (QB) Haddon-Cave J (as he then was) adopted the following approach: firstly, he played the recording of the broadcasts with the transcripts to hand, watching enough of the recording to obtain a flavour of the tone and structure and the style and approach of the presenter and the other speakers; secondly he read the full English translation of the entire transcripts of each broadcast and formed his own impression of the meaning of the particular words complained of; thirdly, he considered counsels’ written and oral submissions regarding the meaning of the words; and fourthly he replayed the recordings with the transcript and his notes to hand in order to confirm or adjust the impression he had formed earlier (para 38).

The legal principles to be applied when determining the meaning of the words complained of were distilled by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), [2024] 4 WLR 25 (“Koutsogiannis”) at paras 11 – 12. This distillation was approved by the Court of Appeal in Millett at para 8. I will summarise the pertinent elements for present purposes. The Court’s task is to determine the single natural and ordinary meaning of the words complained of (para 11). This is the meaning that the hypothetical reasonable reader or viewer would understand the words to bear (para 11). The intention of the publisher is irrelevant (para 12(ii)). The hypothetical reasonable reader is neither naïve, nor 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 a man who is not avid for scandal and someone who does not select one bad meaning where other non-defamatory meanings are available (para 12(iii)). Over elaborate analysis should be avoided and the Court should not take too literal approach to the task (para 12(iv) and (v)). The publication must be read as a whole (including any “bane” and “antidote”) and account taken of the context in which it appeared and the mode of publication (para 12(viii) and (ix)). Sometimes, context may clothe the words in a more serious or a weaker meaning, than would be the case if the words complained of were read in isolation (para 12(viii)). It is necessary to take account of context and the mode of publication (para 12(ix)). No evidence beyond the publication complained of is admissible in determining the natural and ordinary meaning of the words (para 12(x)). The hypothetical reader is taken to be representative of those who would read the publication in question (para 12(xi)). Judges should have regard to the impression that the words had upon them in considering what impact they would have made on the hypothetical reasonable reader (para 12(xii)). 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 more injurious than that pleaded by the claimant (para 12(xiii)).

In Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11 (“Chase”) at para 45, Brooke LJ identified three types of defamatory allegation, broadly: (1) the claimant is guilty of the act; (2) there are reasonable grounds to suspect that the claimant is guilty of the act; and (3) there are grounds to investigate whether the claimant has committed the act. These meanings were described by Nicklin J in Brown v Bower [2017] EWHC 2637 (QB), [2017] 4 WLR 197 (“Brown”) (at para 17) as “a helpful shorthand”, rather than a straight jacket, given that there is almost infinite capacity for subtle differences of meaning.

The “repetition rule”, was explained by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 in the following terms:

“…you cannot escape liability for defamation by putting the libel behind a prefix such as ‘I have been told that…’ or ‘It is rumoured that…’ and then asserting that it was true that you had been told or that it was in fact being rumoured. You have…to prove that the subject-matter of the rumour was true…A rumour that a man is suspected of fraud is different from one that he is guilty of it. For the purposes of the law of libel a hearsay statement is the same as a direct statement and that is all there is to it… (page 275)

…It is not therefore, correct to say that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that.”

In Brown, Nicklin J emphasised that when considering the meaning of the words in question, the repetition rule is to be applied alongside all the other matters to which the Court must have regard; the task is always to determine what the ordinary reasonable reader would understand the words to mean (para 28). Nicklin J went on to indicate:

“30.…to produce a Chase level 1 meaning, the effect of the publication (taken as a whole) has to be the adoption or endorsing of the allegation. That adoption or endorsement may come from ‘bald’ repetition…or it may come from other context which signals to the reader that the allegation is being adopted when it is repeated. The converse is also true. The context may signal to the reader that the allegation is not being adopted or endorsed.

…..

32.…When the authorities speak of rejecting submissions that words repeating the allegations of others bear a lower meaning than the original publication that is a rejection of the premise that the statement is less defamatory (or not defamatory at all) simply because it is a report of what someone else has said. That kind of reasoning is what the repetition rule prohibits when applied to meaning. The meaning to be attached to the repetition of the allegation has still to be judged, applying the rules of interpretation I have set out above, looking at the publication as a whole.” (Emphasis in the original.)

Determination of the meaning of a publication also involves assessing whether the words in question convey fact or opinion. The applicable principles were summarised by Nicklin J in Koutsogiannis at paras 16 – 17. The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context may be an important indicator of whether they are fact or opinion (para 16(iii)). The statement must be recognisable as comment, as distinct from an imputation of fact (para 16(i)). Opinion is something “which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc” (para 16(ii)).

As Steyn J explained in Vine v Barton [2024] EWHC 1268 (KB) at para 23, a statement is defamatory at common law if it: (a) attributes to the claimant behaviour or views that are contrary to common, shared values of our society (referred to as “the consensus requirement”); and (b) would tend to have a substantially adverse effect on the way that people would treat the claimant (“the threshold of seriousness”).