Gillick v British Broadcasting Corporation & Anor

At a preliminary issue on meaning, the court decides whether words are capable of bearing the pleaded meaning; the jury determines the meaning ultimately conveyed. For a television broadcast, meaning is assessed through the natural and ordinary impression on the ordinary reasonable viewer watching once, without lawyerly or over-literal analysis. Words may be capable of defamatory meaning where viewers could infer a causal link between a public campaign and deaths, and understand them as attributing moral responsibility of a culpable degree. The seriousness of the programme does not prevent that inference.

Victoria Gillick brought libel proceedings against the British Broadcasting Corporation and Susan Pearce over words spoken by Pearce during a 1989 live television discussion concerning Brook Advisory Centres and Gillick’s campaign about contraceptive advice for girls under sixteen.

On a preliminary issue, Sir Michael Davies held that the words were capable of bearing the pleaded meaning that Gillick had caused or was morally responsible for at least two suicides, and entered judgment for her on that issue. The defendants appealed. The central question was whether the words were capable of that meaning and, so understood, capable of being defamatory.

Majority

Neill L.J. and Evans L.J. dismissed the appeal. The preliminary issue, brought under Order 33 rule 3 of the Rules of the Supreme Court (now Order 82 rule 3A), concerned only whether the words were capable of bearing the pleaded meaning. Their actual meaning in context remained for the jury. The falsity of the allegation removed any possible plea of justification but did not determine whether the words were capable of the alleged meaning.

Neill L.J. applied the guidance in Skuse v Granada Television Ltd. (30 March 1993) (unreported). The court must assess the natural and ordinary meaning conveyed to the ordinary reasonable viewer watching the programme once. The viewer is neither naive nor unduly suspicious, and may read between the lines, but the court should avoid over-elaborate, lawyerly or excessively literal analysis. The approach was consistent with Lord Devlin’s observation in Lewis v Daily Telegraph Ltd. [1964] AC 234 at 277 that lay viewers draw implications more freely than lawyers, particularly where the implication is derogatory.

In context, the words were capable of conveying a clear link between Gillick’s successful campaign and the alleged suicides. They were also capable of conveying that she was in some sense to blame and morally responsible to a culpable degree. The serious nature of the programme did not prevent that meaning; it made a merely flippant interpretation less likely. A jury could properly find that the words were likely to affect her adversely in the estimation of reasonable people generally.

Dissent

Millett L.J. would have allowed the appeal. He considered that the court had to ask both whether the words were capable of bearing the pleaded meaning and whether, so understood, they were capable of being defamatory. He accepted that the words could attribute moral responsibility and causation in the limited sense that the deaths would not have occurred but for the policy for which Gillick had campaigned. In his view, however, they criticised the policy and alleged tragic, unintended consequences rather than personal culpability. They therefore constituted no actionable libel of Gillick herself.

Order: appeal dismissed with costs.

• Court of Appeal (Civil Division) — The defendants appealed against the preliminary-issue judgment and the appeal was dismissed with costs.
• High Court of Justice, Queen’s Bench Division — Sir Michael Davies held that the words were capable of bearing the pleaded meanings and directed judgment for Gillick on the preliminary issue.