Berkoff v Burchill & Anor [1996] EWCA Civ 564 (31st July, 1996)

(Mr Justice Drake)
Royal Courts of Justice
London WC2
Wednesday, 31st July 1996
B e f o r e:
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MR J PRICE QC (Instructed by Theodore Goddard, EC1A 4EJ) appeared on behalf of the Appellants
MR M BARCA (Instructed by Mishcon de Reya, WC1B 5HS) appeared on behalf of the Respondent
(As approved )
Wednesday, 31st July 1996
This appeal raises questions as to the meaning of the word “defamatory” and as to the nature of an action for defamation.
The facts can be stated quite shortly. The plaintiff, Mr. Steven Berkoff is an actor, director and writer who is well known for his work on stage, screen and television. The first defendant, Miss Julie Burchill, is a journalist and writer who at the material times was retained to write articles about the cinema for the Sunday Times. The second defendants, Times Newspapers Limited, are the publishers of the Sunday Times.
In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film “The Age of Innocence”. In the course of the review, in a general reference to film directors, Miss Burchill wrote:
“… film directors, from Hitchcock to Berkoff are notoriously hideous-looking people.”
Nine months later Miss Burchill returned to the same theme in a review of the film “Frankenstein”. In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called “the Creature”. She wrote:
“The Creature is made as a vessel for Waldman’s brain, and rejected in disgust when it comes out scarred and primeval. It’s a very new look for the Creature – no bolts in the neck or flat-top hairdo – and I think it works; its a lot like Stephen Berkoff, only marginally better-looking.”
Following the publication of the second article Mr. Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr. Berkoff issued a writ. In paragraph 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr. Berkoff was hideously ugly. It is to be noted that in paragraph 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.
The defendants then issued a summons pursuant to RSC Order 14A seeking an order that the following question of law might be determined:
“Whether the meaning pleaded in paragraph 6 of the statement of claim … is capable of being defamatory”.
The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.
The summons was heard by Sir Maurice Drake sitting as a High Court Judge. After hearing argument the judge dismissed the defendants’ application, but he gave the defendants leave to appeal.
The primary submission on behalf of Mr. Berkoff before the judge was that the meaning was defamatory because to call a person “hideously ugly” would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr. Berkoff. The judge stated his conclusion at page 6 of his judgment as follows:
“I must say I am doubtful whether to call a person ´hideously ugly’ exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person’s character or good reputation. For that reason, albeit with hesitation, I hold that to call a person ´hideously ugly’ is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out.”
The Law
Before stating my conclusion I propose to examine the relevant question of law under three headings
(1) The scope of the present application.
(2) Definitions of “defamatory”.
(3) Additional Guidance from decided cases.
I turn to the first heading.
The scope of the present application.
No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.
A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd. v. George Henty & Sons (1882) 7 App. Cas. 741. In that case the defendants sent a circular to a large number of their customers stating “Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.” The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal, that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.
It is clear, however, that the court should exercise great caution before concluding that words are incapable of a defamatory meaning. In the present case the position is somewhat different because a specified meaning has been isolated and the preliminary issue requires the determination of the single question, whether that meaning is capable of being defamatory. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in RSC Order 82 Rule 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the “marginally better-looking” Creature was such that it was “rejected in disgust” when it came out “scarred and primeval”.
I turn next to consider some of the definitions of the word “defamatory”.
Definitions of “defamatory”
I am not aware of any entirely satisfactory definition of the word “defamatory”. It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.
(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840) 6 M & W 105, 108. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:
“A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.”
It is to be noted that in Tournier v. National Provincial Bank [1924] 1 KB 461 Scrutton L.J. said at 477 that he did not think that this “ancient formula” was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin L.J. expressed a similar opinion. At 487 he said:
“I do not think that it is sufficient direction to a jury on what is meant by ´defamatory’ to say, without more, that it means: were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers but it is obvious that suggestions might be made very injurious to a man’s character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt – for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of the jury might understand as hatred or contempt.”
(2) In Scott v. Sampson (1882) 8 QBD 491 the Court of Queen’s Bench was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. At 503 Cave J. explained the nature of the right which is concerned in an action for defamation:
“Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.”
But as was pointed out in the report of the Faulks Committee (paragraph 62) the word “discredit” is itself incapable of precise explication. Nevertheless, in Youssoupoff v. M.G.M. Pictures Ltd. (1934) 50 TLR 581 Scrutton L.J. said that he thought that it was difficult to improve upon the language of this definition.
(3) In Sim v. Stretch [1936] 2 All ER 1237 Lord Atkin at 1240 expressed the view that the definition in Parmiter v. Coupland (supra) was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:
“… after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”
(4) As I have already observed, both Scrutton L.J. and Atkin L.J. in Tournier’s case drew attention to words which damage the reputation of a man as a business man. In Drummond-Jackson v. British Medical Association [1970] 1 WLR 688 the Court of Appeal was concerned with an article in a medical journal which, it was suggested, impugned the plaintiff’s reputation as a dentist. Lord Pearson said at 698:
“… Words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgement or efficiency in the conduct of his trade or business or professional activity.”
It is therefore necessary in some cases to consider the occupation of the plaintiff.
(5) In Youssoupoff v. M.G.M. Pictures Ltd. (supra) Slesser L.J. expanded the Parmiter v. Coupland definition to include words which cause a person to be shunned or avoided. At 587 he said:
“… not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff’s] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff’s] part. It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.”
Slesser L.J. added, in relation to the facts in that case:
“One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.”
(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted:
“Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.”
(7) In the Restatement, Torts (2nd), paragraph 559 the following definition is given:
“A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”
(8) In some of the Australian States a definition of “defamatory matter” is contained in the Code. In the Queensland Code, section 366, the following definition is given:
“Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him.”
It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt scorn or ridicule or tend to exclude him from society. On the other hand insults which do not diminish a man’s standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.
The case for Mr. Berkoff is that the charge that he is “hideously ugly” exposes him to ridicule and, or alternatively, will cause him to be shunned or avoided. I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.
Guidance from Decided Cases.
It will be convenient to consider the cases chronologically.
(1) In Cropp v. Tilney (1693) 3 Salk 225 the plaintiff complained of a publication which he said had resulted in his failing to be elected as a Member of Parliament. The words of which he complained are irrelevant for present purposes, but it is to be noted that at 226 Holt CJ said:
“Scandalous matter is not necessary to make a libel, it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous; as for instance, an action was brought by the husband for riding Skimmington, and adjudged that it lay, because it made him ridiculous, and exposed him.”
It seems that the reference by Holt CJ was to the decision in Mason v. Jennings (1680) Sir T. Raym 401, where the phrase “riding Skimmington” was taken to imply that the plaintiff’s wife beat him.
(2) In Villers v. Monsley (1769) 2 Wilson 403 the plaintiff complained of some verses written by the defendant which suggested that the plaintiff smelt of brimstone and which included the line:
“You old stinking, old nasty, old itchy old toad…”
The court upheld the plaintiff’s award of sixpence damages which he had received at Warwickshire Assizes. Lord Wilmot CJ said:
“… If any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases. … Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.”
The other members of the court agreed. Gould J said:
“What is the reason why saying a man has the leprosy or plague is actionable? It is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society. I think that publishing anything of a man that renders him ridiculous is a libel and actionable…”
(3) In Dunlop Rubber Co. Ltd. v. Dunlop [1921] 1 AC 367 the plaintiff who was the inventor of a pneumatic tyre had assigned his interest in the invention to the defendant company. The plaintiff lived in Ireland. In 1891 the plaintiff had presented the defendants’ predecessors in title with a portrait bust of himself and his signature to be used as a trademark. Later, however, the defendants, without his permission, exhibited advertisements containing pictures intended to represent him, but the features, which were adapted from the portrait bust, were placed upon the body of a very tall man dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an injunction against the defendant company in the Chancery Division in Ireland and the injunction was upheld by the Court of Appeal in Ireland. On appeal to the House of Lords it was argued that leave should not have been given in Ireland to serve a writ in London. But in the course of his speech dismissing the appeal Lord Birkenhead LC said at 372:
“… It was said in the court below, and it has been said in other cases which were cited to us as authorities, that such an injunction would not be granted, and ought not to be granted, unless the court was satisfied of the existence of a serious libel, unless indeed it was prepared confidently and completely to anticipate what the view of a jury would be when it tried the case. I am not sure that in some of the passages cited the case was not in this particular put rather too high. It is sufficient for me to say that the judges who tried this case have reached the conclusion (and I agree with them) that the exhibition of these pictures constituted a circumstance in which that which was done was at least capable of a defamatory meaning.”
It is to be noted that the claim in the writ for an injunction was to restrain the defendants from publishing any advertisements etc. which contained pictures representing the plaintiff “in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume”.
(4) In Zbyszko v. New York American (1930) 228 NY App.Div. 277 the plaintiff, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article called attention to the structural resemblance between man and the gorilla. Near the top of the page appeared a photograph of the plaintiff in a wrestling pose and under it the words:
“Stanislaus Zbyszko, the wrestler, not fundamentally different from the gorilla in physique.”
In close proximity to the photograph of the plaintiff was a photograph of a gorilla (described in the law report as “hideous looking”) which was stated to be a mounted specimen of the Great Kivu gorilla in Lord Rothschild’s museum in England.
The plaintiff’s action, in which it was pleaded that “the plaintiff enjoyed an international reputation for dignity …, kindliness, intelligence and culture” was struck out by the Supreme Court for New York County but the case was reinstated by the Appellate Division. It was held that the tendency of the article was to disgrace him and bring him into ridicule and contempt. McAvoy J. said at 413:
“Any written article is actionable … if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.”
The court therefore held that the case could not be struck out before trial.
(5) In Youssoupoff v. M.G.M. Ltd. (supra) the plaintiff complained that she could be identified with the character Princess Natasha in the film “Rasputin, the Mad Monk”. The Princess claimed damages on the basis that the film suggested that, by reason of her identification with “Princess Natasha”, she had been seduced by Rasputin. The Princess was awarded £25,000 damages. In the Court of Appeal it was contended that if the film indicated any relations between Rasputin and “Natasha” it indicated a rape of Natasha and not a seduction. Slesser L.J. considered the defamatory nature of the film at 587:
“I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.”
Later he added at 588:
“When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.”
(6) In Winiard v. Tatler Publishing Company Ltd. (16 July 1991) (unreported) the Tatler magazine published an article which contained a reference to a residential health spa of which Mr. Stephen Winiard and Mrs. Winiard, his mother, were directors. Mrs. Winiard complained of a sentence which was in these terms:
“His mother, Gaynor Winiard, is an internationally renowned beauty therapist (known more familiarly on the beautician circuit as ´the international boot’).”
One of the meanings of “boot” relied on by Mrs. Winiard was that it meant “an ugly harridan”. At the trial the judge considered a submission that in this meaning the word “boot” was not capable of being defamatory. He said:
“In their context, applied to a lady who is in the alleged libel itself described as ´a beauty therapist’ and ´someone on the beautician circuit’ to call such a person ´an ugly harridan’ is in my view something beyond mere ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it thought right, would be entitled, within the well known definition (which I am not going to repeat here but I shall state to the jury) of finding to be defamatory.”
It seems that the “well known definition” was that of Lord Atkin in Sim v. Stretch (supra): “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”
In his judgment in the Court of Appeal Staughton L.J. referred to the judge’s ruling:
“It may well be that in some cases to say that a woman is old and ugly or haggard would do no more than cause injury to her feelings, and would not affect her character or reputation. The judge evidently felt that a different view might be taken if she was a beauty therapist. It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others might not wish her to be in charge of their treatment. I entirely agree with the judge’s ruling on this point; it was open for the jury, if they thought fit, to find that this meaning of the word ´boot’ lowered Mrs. Winiard’s character or reputation. Whether they did reach that conclusion we do not know. It may be that their verdict was entirely based on the innuendo meaning of a promiscuous slut, which (if established) was far more serious.”
(7) In Manning v. Hill (1995) DLR (4th) Issue 129 the Supreme Court of Canada was concerned with the relationship between the common law action for defamation and the Canadian Charter of Rights and Freedoms. In the course of his judgment, with which the majority of the court agreed, Cory J. considered the nature of actions for defamation and the values which require to be balanced. At page 160 he traced the history of proceedings designed to protect the reputation of an individual. Starting with the provisions of the Mosaic code he came to the origins of the modern law of libel arising out of the case De Libellis Famosis (1605) 5 Co. Rep. 125a. At page 162 he continued:
“Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance. … reputation is the ´fundamental foundation on which people are able to interact with each other in social environments.’ At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J. in Rosenblatt v. Bear (1966) 383 US 75 at 92: “The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty.”
The Appeal
It was argued by counsel on behalf of the defendants that the defining characteristic of the tort of defamation is injury to reputation. The fact that a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory. He reminded us of Lord Atkin’s words in Sim v. Stretch (supra) who said at 1242 that though the freedom of juries to award damages for injury to reputation was one of the safeguards of liberty, the protection was undermined “when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs.”
Counsel accepted that it was also defamatory to say of a man that he was suffering from certain diseases. But he submitted that a distinction had to be drawn between an allegation that someone was physically unwholesome and an allegation that someone was physically aesthetically unpleasing. It could not be defamatory to say that an individual had a streaming cold or influenza, so the test of being “shunned or avoided” cannot be applied without qualification. It was also to be noted that it was not suggested in the Youssoupoff case that there was no evidence on which it could be found that the passages complained of were defamatory of the Princess: see Greer L.J. at 586.
Counsel for Mr. Berkoff on the other hand contended that the present case fell into the residual class where words may be defamatory even though they do not involve an attack on a plaintiff’s reputation in the conventional sense. Mr. Berkoff, it was said, is an actor and a person in the public eye. It was submitted that it was necessary to look at all the circumstances. If this were done it was a matter for the jury to decide whether the words complained of had passed beyond mere abuse and had become defamatory by exposing Mr. Berkoff to ridicule or by causing him to be shunned or avoided. It was suggested that these two passages would reduce the respect with which he was regarded. The words complained of might affect Mr. Berkoff’s standing among the public, particularly theatregoers, and among casting directors.
In his helpful submissions on behalf of the defendants Mr. Price QC rightly underlined the central characteristic of an action for defamation as being a remedy for publications which damage a person’s reputation. But the word “reputation”, by its association with phrases such as “business reputation”, “professional reputation” or “reputation for honesty”, may obscure the fact that in this context the word is to be interpreted in a broad sense as comprehending all aspects of a person’s standing in the community. A man who is held up as a figure of fun may be defeated in his claim for damages by, for example, a plea of fair comment, or, if he succeeds on liability, the compensation which he receives from a jury may be very small. But nevertheless the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him.
It was argued on behalf of Mr Berkoff that in considering whether words were capable of a defamatory meaning it was necessary to take into account every possible group of persons to whom the words might apply. Could the words be defamatory of anyone? In my opinion this is not the right test. Mr Price was, I think, correct when he submitted that the question has to be answered in relation to the claim by the plaintiff. But if this is done, one has to look at the words and judge them in the context in which they were published. Indeed, as I pointed out earlier, it is pleaded in the statement of claim that reliance will be placed on the context. It may be that in some contexts the words “hideously ugly” could not be understood in a defamatory sense, but one has to consider the words in the surroundings in which they appear. This task is particularly important in relation to the second article.
It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning. In the present case it would in my view be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule
I confess that I have found this to be a far from easy case, but in the end I am satisfied that it would be wrong to decide this preliminary issue in a way which would withdraw the matter completely from the consideration of a jury.
I would dismiss the appeal.
LORD JUSTICE MILLETT: Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is “hideously ugly”?
Mr. Berkoff is a director, actor and writer. Physical beauty is not a qualification for a director or writer. Mr. Berkoff does not plead that he plays romantic leads or that the words complained of impugn his professional ability. In any case, I do not think that it can be defamatory to say of an actor that he is unsuitable to play particular roles.
How then can the words complained of injure Mr. Berkoff’s reputation? They are an attack on his appearance, not on his reputation. It is submitted on his behalf that they would cause people “to shun and avoid him” and would “bring him into ridicule”. Ridicule, it will be recalled, is the second member of a well-known trinity.
The submission illustrates the danger of trusting to verbal formulae. Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man’s standing in the world.
The cases in which words have been held to be defamatory because they would cause the plaintiff to be shunned or avoided, or “cut off from society”, have hitherto been confined to allegations that he suffers from leprosy or the plague or the itch ( Villers v. Mosley (1769) 2 Wils. KB 403) or is noisesome and smelly (ib.). I agree with Phillips LJ. and for the reasons which he gives that an allegation of ugliness is not of that character. It is a common experience that ugly people have satisfactory social lives – Boris Karloff is not known to have been a recluse – and it is a popular belief for the truth of which I am unable to vouch that ugly men are particularly attractive to women.
I have no doubt that the words complained of were intended to ridicule Mr. Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v. Tatler Publishing Co. (C.A. unreported: 16th June 1991) it was held to be defamatory to call a professional beautician “an ugly harridan”, not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.
The other case is Zbyszko v. New York American Inc. (1930) 2239 NYS 411. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: “Stanislaus Zbyszko, the Wrestler: Not Fundamentally Different from the Gorilla in Physique.” The Statement of Claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband’s physique until it was pointed out to her by the newspaper) his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The New York Court of Appeals held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case.
The line between mockery and defamation may sometimes be difficult to draw. When it is it should be left to the jury to draw it. Despite the respect which is due to the opinion of Neill LJ, whose experience in this field is unrivalled, I am not persuaded that the present case could properly be put on the wrong side of the line. A decision that it is an actionable wrong to describe a man as “hideously ugly” would be an unwarranted restriction on free speech. And if a bald statement to this effect would not be capable of being defamatory, I do not see how a humorously exaggerated observation to the like effect could be. People must be allowed to poke fun at one another without fear of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at Mr. Berkoff’s expense; she may thereby have demeaned herself, but I do not believe that she defamed Mr. Berkoff.
If I have appeared to treat Mr. Berkoff’s claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill’s article. The time of the Court ought not to be taken up with either of them. I would allow the appeal and dismiss the Action.
LORD JUSTICE PHILLIPS: In almost every case in the books, words which have been held to be defamatory have been words which have denigrated the character or personality of the Plaintiff, not the corporeal envelope housing that personality. The law of defamation protects reputation, and reputation is not generally dependent upon physical appearance. Exceptionally there has been a handful of cases where words have been held defamatory, notwithstanding that they do not attack character or personality.
As Hunt J. observed in Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453:
At common law, in general, an imputation, to be defamatory of the Plaintiff, must be disparaging of him… I say that this is “in general” the position, as the common law also recognises as defamatory an imputation which, although not disparaging, tends to make other persons “shun or avoid” the plaintiff, for example by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped, as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part.
‘Shun or Avoid’
It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the Plaintiff, but it is axiomatic that the words must relate to an attribute of the Plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment such a statement differs in principle from those statements about a person’s physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact – illness, madness, filthiness or defilement. Hearsay factual statements about a person’s physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual’s features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person’s features.
It is perhaps for this reason that statements disparaging, however strongly, a person’s features – and many such statements must have been published – have never been the subject of a successful claim for defamation.
My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the Plaintiff.
The class of cases where it has been held defamatory, or potentially defamatory, to damage a Plaintiff’s reputation by exposing him to ridicule is too elusive to encapsulate in any definition. No case demonstrates this better than Dunlop Rubber Company Ltd v Dunlop [1921] 1 A.C.367 the facts of which have been outlined by Neill L.J. The preliminary point which is the subject of this appeal does not require us to decide whether the publications complained of are capable of constituting defamation of the Plaintiff. The question which we are asked to answer is whether “the meaning pleaded in paragraph 6 of the Statement of Claim is capable of being defamatory.” The Defendant’s skeleton argument opened with the following proposition:
The question of law for decision is whether a statement that an individual is ugly is capable of being defamatory. If this statement is defamatory in one case, it must be in all cases (in the absence of any distinguishing features of a particular case), so that there is no distinction to be drawn between the technical issue of law, whether it is capable of being defamatory, and the technical issue of fact, whether it is defamatory.
I cannot accept this proposition. Where the issue is whether words have damaged a Plaintiff’s reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se. The question has to be considered in the light of the actual words used and the circumstance in which they are used. There are many ways of indicating that a person is hideously ugly, ranging from a simple statement of opinion to that effect, which I feel could never be defamatory, to words plainly intended to convey that message by way of ridicule. The words used in this case fall into the latter category. Whether they have exposed the Plaintiff to ridicule to the extent that his reputation has been damaged must be answered by the Jury. The preliminary point raised by the Defendant cannot be answered in the affirmative and this appeal should be dismissed.
Order: Appeal dismissed by a majority with costs; leave to appeal refused.Source: