Brady v Norman

Qualified privilege requires proof of a duty or legitimate interest in communicating the material and a corresponding material interest in receiving it. A general interest in an industry, trade union or subject matter is insufficient. Words reporting an adverse ruling may be defamatory because the ruling may convey serious wrongdoing. An inference of internet publication must rest on evidence and reasoning, not speculation.

The claimant, a former General Secretary of ASLEF, sued the defendant, its current General Secretary, over an article in the union’s journal concerning the claimant’s exclusion from membership. The journal was circulated to ASLEF members and others and placed on the ASLEF website.

Before trial, the court determined whether publication was protected by qualified privilege, whether the words were capable of a defamatory meaning, and whether evidence supported an inference that non-privileged readers had accessed the website.

1. The defendant failed to establish qualified privilege for publication to approximately 131 additional recipients. A material duty or legitimate interest in communicating the information, and a corresponding material common or reciprocal interest in receiving it, were required. A general interest in railway, transport or trade union affairs was insufficient.
2. Applying Gillick v Brook Advisory Centres [2001] EWCA Civ 1263, the words were to be assessed as understood by the ordinary reasonable reader, reading the article once and in context. The words were capable of bearing a defamatory meaning. Reporting an adverse ruling did not make the imputation morally neutral.
3. Applying the analogous no-case approach in Alexander v Arts Council of Wales [2001] 1 WLR 1840, with reference to R v Galbraith [1981] 1 WLR 1039, the court held that there was insufficient evidence to infer website publication to non-privileged readers. The issue could not properly be left to the jury because that would require speculation.