CHARLESTON AND ANOTHER
(APPELLANTS)
v.
NEWS GROUP NEWSPAPERS LIMITED AND ANOTHER
(RESPONDENTS)
ON 30TH MARCH 1995
Lord Goff of Chieveley
Lord Bridge of Harwich
Lord Jauncey of Tullichettle
Lord Mustill
Lord Nicholls of Birkenhead
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
would dismiss the appeal.
LORD BRIDGE OF HARWICH
My Lords,
The appellants are the plaintiffs in an action claiming damages for libel
against the publishers and editor of the News of the World in respect of an
article which appeared in that newspaper on 15 March 1992. A preliminary
issue was ordered to be tried as to whether the article in question was capable
of bearing any of the defamatory meanings pleaded in the plaintiffs’ statement
of claim. On 22 January 1993 Blofeld J. determined the preliminary issue in
favour of the defendants and consequently dismissed the action. On 17
December 1993 the plaintiffs’ appeal from that decision was unaminously
dismissed by the Court of Appeal (Butler-Sloss, Farquharson and Nolan L.JJ.)
(unreported) Court of Appeal (Civil Division) Transcript No. 1549 of 1993.
The plaintiffs now appeal by leave of your Lordships’ House.
The plaintiffs are an actor and actress who played the parts of Harold
and Madge Bishop, a respectable married couple, in the popular Australian
television serial “Neighbours” and were thus well known to an English
audience of millions. The article complained of appears with a headline
across most of the page in capital letters three quarters of an inch high which
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reads: “STREWTH! WHAT’S HAROLD UP TO WITH OUR MADGE?”
Immediately beneath this is a large photograph of a man and a woman nearly
naked. The woman is leaning forward over some piece of furniture and the
man is standing behind her apparently engaging in an act of intercourse or
sodomy with her. Superimposed over the lower part of their bodies is an
outline map of Australia bearing the words “CENSORED DOWN UNDER.”
To the right of this is another smaller photograph of a woman wearing a tight-
fitting blouse or jacket with holes cut to expose her bare breasts. The face of
the man in the large photograph is the male plaintiff’s and the face of the
woman in both photographs is the female plaintiff’s. Below the photographs
is another smaller, but still prominent, headline which reads: “Porn Shocker
for Neighbours stars”. The captions under the photographs are in small print
and read respectively: “SOAP STUDS: Harold and Madge’s faces are added
to porn actors’ bodies in a scene from the game.” and “RAMSAY RAVE:
‘Madge’ in kinky leather gear.” Ramsay Street is where the action of
“Neighbours” is set.
The text of the article which follows makes it clear that the
photographs have been produced by the makers of a pornographic computer
game by superimposing the faces of the plaintiffs without their knowledge or
consent on the bodies of others. The opening paragraphs of the article read:
“What would the Neighbours say . . . straight laced Harold Bishop
starring in a bondage session with screen wife Madge.
“The famous faces from the TV soap are the unwitting stars of a
sordid computer game that is available to their child fans. . . .
“The game superimposes stars’ heads on near-naked bodies of real
porn models. The stars knew nothing about it.”
Beside this text are inset two small photographs of the plaintiffs with the
caption: “VICTIMS: Ian and Anne.” The remainder of the article castigates
the makers of the “sordid computer game” in a tone of self righteous
indignation which contrasts oddly with the prominence given to the main
photograph.
The plaintiffs must have found this publication deeply offensive and
insulting. Many people will not only deplore this kind of gutter journalism
but will think that the law ought to give some redress to the plaintiffs against
the publication of such degrading faked photographs irrespective of what the
accompanying text may have said. I have considerable sympathy with this
point of view.
However, your Lordships are not concerned to pronounce on any
question of journalistic ethics nor to consider whether the publication of the
photographs by itself constituted some novel tort. The single question of law
to which the appeal gives rise is whether the plaintiffs have any remedy in the
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tort of defamation on the basis of their pleaded claim, and this in turn narrows
down to the question whether a claim in defamation in respect of a publication
which, it is conceded, is not defamatory if considered as a whole, may
nevertheless succeed on the ground that some readers will have read part only
of the published matter and that this part, considered in isolation, is capable
of bearing a defamatory meaning.
The plaintiffs’ statement of claim alleges that the publication conveyed
to the reader a number of defamatory meanings. The basis on which all these
alleged meanings rest is that the reader would have drawn the inference that
the plaintiffs had been willing participants in the production of the
photographs, either by posing for them personally or by agreeing that their
faces should be superimposed on the bodies of others. But it is conceded on
the plaintiffs’ behalf, and is indeed obvious, that no reader could possibly
have drawn any such inference if he had read beyond the first paragraph of
the text. Thus the essential basis on which Mr. Craig’s argument in support
of the appeal rests is that, in appropriate circumstances, it is possible and
legitimate to identify a particular group of readers who read only part of a
publication which conveys to them a meaning injurious to the reputation of a
plaintiff and that in principle the plaintiff should be entitled to damages for the
consequent injury he suffers in the estimation of this group.
It is well settled, as Mr. Craig accepts, that, save in the case of a legal
innuendo dependent on extrinsic facts known to certain readers, no evidence
is admissible as to the sense in which readers understood an allegedly
defamatory publication. No legal innuendo is here alleged. But here, so
Mr. Craig’s argument runs, it goes without saying and no evidence is required
to establish that, out of the many millions constituting the readership of a mass
circulation newspaper like the News of the World, a significant proportion,
when they saw the page of which the plaintiffs complain, would have done no
more than to have read the headlines and looked at the photographs. It will be
convenient to refer to this group as the “limited readers”. The argument
before your Lordships was substantially confined to the effect of the
publication on the minds of the limited readers. They would, Mr. Craig
submits, have drawn an inference defamatory of the plaintiffs as actors willing
to participate in pornographic films and it should be left to a jury to estimate
the size of the group constituted by the limited readers and to award damages
accordingly for the injury which the plaintiffs’ reputation must have suffered
in the estimation of this group.
The first formidable obstacle which Mr. Craig’s argument encounters
is a long and unbroken line of authority the effect of which is accurately
summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p. 13,
para. 4.11 as follows:
“In order to determine the natural and ordinary meaning of the words
of which the plaintiff complains it is necessary to take into account the
context in which the words were used and the mode of publication.
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Thus a plaintiff cannot select an isolated passage in an article and
complain of that alone if other parts of the article throw a different
light on that passage.”
The locus classicus is a passage from the judgment of Alderson B. in
Chalmers v. Payne (1835) 2 C.M.& R.156, 159, who said:
“But the question here is, whether the matter be slanderous or not,
which is a question for the jury; who are to take the whole together,
and say whether the result of the whole is calculated to injure the
plaintiff’s character. In one part of this publication, something
disreputable to the plaintiff is stated, but that is removed by the
conclusion; the bane and antidote must be taken together.”
This passage has been so often quoted that it has become almost conventional
jargon among libel lawyers to speak of the bane and the antidote. It is often
a debatable question which the jury must resolve whether the antidote is
effective to neutralise the bane and in determining this question the jury may
certainly consider the mode of publication and the relative prominence given
to different parts of it. I can well envisage also that questions might arise in
some circumstances as to whether different items of published material
relating to the same subject matter were sufficiently closely connected as to
be regarded as a single publication. But no such questions arise in the instant
case. There is no dispute that the headlines, photographs and article relating
to these plaintiffs constituted a single publication nor that the antidote in the
article was sufficient to neutralise any bane in the headlines and photographs.
Thus it is essential to the success of Mr. Craig’s argument that he establish
the legitimacy in the law of libel of severance to permit a plaintiff to rely on
a defamatory meaning conveyed only to the category of limited readers.
Your Lordships were very properly referred to the many authorities in
which the principle of Chalmers v. Payne has been affirmed and applied. But
it is unnecessary to go through them, since Mr. Craig accepts that these
authorities, so far as they go, are unanimously against his proposition and that
he is unable to rely on any other authority in support of the principle of
severance which he now advances.
The theme of Mr. Craig’s argument runs on the following lines. All
the earlier authorities, he submits, are explicable on the basis that the
allegedly defamatory matter with which they were concerned was located
somewhere in a document in which there was no likelihood that it would be
read in isolation. In such a situation it is natural and proper to look for the
meaning conveyed to the reader by considering the publication as a whole.
The techniques of modern tabloid journalism, however, confront the courts
with a novel situation with which the law has not hitherto had to grapple. It
is plain that the eye-catching headline and the eye-catching photograph will
first attract the reader’s attention, precisely as they were intended to do, and
equally plain that a significant number of readers will not trouble to read any
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further. This phenomenon must be well known to newspaper editors and
publishers, who cannot, therefore, complain if they are held liable in damages
for any libel thus published to the category of limited readers.
At first blush this argument has considerable attractions, but I believe
that it falls foul of two principles which are basic to the law of libel. The first
is that, where no legal innuendo is alleged to arise from extrinsic
circumstances known to some readers, the “natural and ordinary meaning” to
be ascribed to the words of an allegedly defamatory publication is the
meaning, including any inferential meaning, which the words would convey
to the mind of the ordinary, reasonable, fair-minded reader. This proposition
is too well established to require citation of authority. The second principle,
which is perhaps a corollary of the first, is that, although a combination of
words may in fact convey different meanings to the minds of different readers,
the jury in a libel action, applying the criterion which the first principle
dictates, is required to determine the single meaning which the publication
conveyed to the notional reasonable reader and to base their verdict and any
award of damages on the assumption that this was the one sense in which all
readers would have understood it. The origins and the implications of this
second principle are the subject of a characteristically penetrating analysis in
the judgment of Diplock L.J. in Slim v. Daily Telegraph Ltd [1968] 2
Q.B.157, at pp. 171-174, from which it will, I think, be sufficient to cite the
following passages:
“Everyone outside a court of law recognises that words are imprecise
instruments for communicating the thoughts of one man to another.
The same words may be understood by one man in a different meaning
from that in which they are understood by another and both meanings
may be different from that which the author of the words intended to
convey. But the notion that the same words should bear different
meanings to different men and that more than one meaning should be
‘right’ conflicts with the whole training of a lawyer. Words are the
tools of his trade. He uses them to define legal rights and duties.
They do not achieve that purpose unless there can be attributed to them
a single meaning as the ‘right’ meaning. And so the argument
between lawyers as to the meaning of words starts with the
unexpressed major premise that any particular combination of words
has one meaning which is not necessarily the same as that intended by
him who published them or understood by any of those who read them
but is capable of ascertainment as being the ‘right’ meaning by the
adjudicator to whom the law confides the responsibility of determining
it. …
“Where, as in the present case, words are published to the millions of
readers of a popular newspaper, the chances are that if the words are
reasonably capable of being understood as bearing more than one
meaning, some readers will have understood them as bearing one of
those meanings and some will have understood them as bearing others
– 5 –
of those meanings. But none of this matters. 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. . . .
“Juries, in theory, must be unanimous upon every issue on which they
have to adjudicate; and since the damages that they award must depend
upon the defamatory meaning that they attribute to the words, they
must all agree upon a single meaning as being the ‘right’ meaning.
And so the unexpressed major premise, that any particular combination
of words can bear but a single ‘natural and ordinary meaning’ which
is ‘right,’ survived the transfer from judge to jury of the function of
adjudicating upon the meaning of words in civil actions for libel.”
It is precisely the application of the principle so clearly expounded in
these passages which, in a libel action where no legal innuendo is alleged,
prevents either side from calling witnesses to say what they understood the
allegedly defamatory publication to mean. But it would surely be even more
destructive of the principle that a publication has “the one and only meaning
which the readers as reasonable men should have collectively understood the
words to bear” to allow the plaintiff, without evidence, to invite the jury to
infer that different groups of readers read different parts of the entire
publication and for that reason understood it to mean different things, some
defamatory, some not.
Whether the text of a newspaper article will, in any particular case, be
sufficient to neutralise the defamatory implication of a prominent headline will
sometimes be a nicely balanced question for the jury to decide and will depend
not only on the nature of the libel which the headline conveys and the
language of the text which is relied on to neutralise it but also on the manner
in which the whole of the relevant material is set out and presented. But the
proposition that the prominent headline, or as here the headlines plus
photographs, may found a claim in libel in isolation from its related text,
because some readers only read headlines, is to my mind quite unacceptable
in the light of the principles discussed above.
I have no doubt that Mr. Craig is right in his assertion that many News
of the World readers who saw the offending publication would have looked
at the headlines and photographs and nothing more. But if these readers,
without taking the trouble to discover what the article was all about, carried
away the impression that two well known actors in legitimate television were
also involved in making pornographic films, they could hardly be described
as ordinary, reasonable, fair-minded readers.
I would dismiss the appeal.
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LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
would dismiss the appeal.
LORD MUSTILL
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
would dismiss the appeal.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
Newspapers get thicker and thicker. The News of the World published
on 15 March 1992 contained 64 pages. Everybody reads selectively, scanning
the headlines and turning the pages. One reader, whose interest has been
quickened by an eye-catching headline or picture, will pause and read an
article. Another reader, with different interests or less tune, will read the
headline and pass on, leaving the article unread. What if a headline, taken
alone or with an attached picture, is defamatory, but the text of the article
removes the defamatory imputation? That is the question of law raised by this
appeal.
At first sight one would expect the law to recognise that some
newspaper readers will have seen only the banner headline and glanced at the
picture. They will not have read the text of the accompanying article. In the
minds of these readers, the reputation of the person who is the subject of the
defamatory headline and picture will have suffered. He has been defamed to
these readers. The newspaper could have no cause for complaint if it were
held liable accordingly. It has chosen, for its own purposes, to produce a
headline which is defamatory. It cannot be heard to say that the article must
be read as a whole when it knows that not all readers will read the whole
article.
To anyone unversed in the law of defamation that, I venture to think,
would appear to be the common sense of the matter. Long ago, however, the
law of defamation headed firmly in a different direction. The law adopts a
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single standard for determining whether a newspaper article is defamatory: the
ordinary reader of that newspaper. I leave aside cases where some readers
may have special knowledge of facts which would cause them to give the
words a different meaning.
In principle this is a crude yardstick, because readers of mass
circulation newspapers vary enormously in the way they read articles and the
way they interpret what they read. It is, indeed, in this very consideration
that the law finds justification for its single standard. The consequence is
that, in the case of some publications, there may be many readers who
understand in a defamatory sense words which, by the single standard of the
ordinary reader, were not defamatory. In respect of those readers a plaintiff
has no remedy. The converse is equally true. So a newspaper may find itself
paying damages for libel assessed by reference to a readership many of whose
members did not read the words in a defamatory sense.
I do not see how, consistently with this single standard, it is possible
to carve the readership of one article into different groups: those who will
have read only the headlines, and those who will have read further. The
question, defamatory or no, must always be answered by reference to the
response of the ordinary reader to the publication.
This is not to say that words in the text of an article will always be
efficacious to cure a defamatory headline. It all depends on the context, one
element in which is the lay-out of the article. Those who print defamatory
headlines are playing with fire. The ordinary reader might not be expected
to notice curative words tucked away further down in the article. The more
so, if the words are on a continuation page to which a reader is directed. The
standard of the ordinary reader gives a jury adequate scope to return a verdict
meeting the justice of the case.
The present case is well on the other side of the borderline. The
ordinary reader could not have failed to read the captions accompanying the
pictures. These made clear that the plaintiffs’ faces had been superimposed
on other actors’ bodies. The plaintiffs had not themselves been indulging in
the activities shown in the pictures. The ordinary reader would see at once
that the headlines and pictures could not be taken at their face value. And the
reader’s eye needed to travel no further than the “victims” caption to the
smaller photographs, and to the second sentence, at the top of the article, to
find confirmation that the plaintiffs were “unwitting” stars in the sordid
computer game.
Accordingly, when the ordinary reader put down the News of the
World on 15 March 1992, he or she would have thought none the worse of
the two actors who are well-known for their roles in the “Neighbours”
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television serial. The ordinary reader might have thought worse of the
producers of the pornographic computer game, and of the News of the World,
but that is a different matter. In agreement with my noble and learned friend,
Lord Bridge of Harwich, I too would dismiss this appeal.
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Source: https://www.bailii.org/
