Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd

The single meaning rule used in defamation does not apply to malicious falsehood. Where reasonable readers may understand a publication in both damaging and innocuous senses, the court may recognise those plural meanings.

A claimant may pursue the damaging meaning by proving its falsity, malice and resulting loss. The existence of an innocent meaning remains relevant when assessing malice, causation and damage. This approach permits the publication’s actual effect on different readers to be evaluated without treating one meaning as legally exclusive.

A producer and supplier of aspartame brought a malicious falsehood claim concerning a supermarket’s health-food packaging. The packaging used the expressions “No hidden nasties” and “no aspartame”.

On a preliminary issue, Tugendhat J held in [2009] EWHC 1717 (QB) that substantial numbers of consumers would understand the packaging as suggesting either a risk that aspartame was harmful or, innocuously, that the products were intended for customers who objected to aspartame. Applying the defamation law single meaning rule, he selected the innocent meaning and thereby disposed of the claim.

The producer appealed. The central issue was whether the single meaning rule should be imported from defamation into malicious falsehood.

1. The appeal was allowed. The single meaning rule applicable in defamation has no place in the tort of malicious falsehood. Sedley LJ delivered the leading judgment. Rimer LJ agreed for additional reasons, and Sir Scott Baker agreed with Sedley LJ’s analysis and reasoning.
2. The rule in defamation requires the adjudicator to attribute one natural and ordinary meaning to the publication, although different reasonable readers may understand it differently. Its historical existence in defamation did not justify extending it to another tort. The rule was anomalous, often unnecessary and, where it affected the result, capable of producing injustice.
3. Defamation and malicious falsehood both protect reputational interests and engage freedom of expression under article 10 of the European Convention on Human Rights. They nevertheless remain distinct torts. They have different historical characteristics, impose different requirements and provide redress for different forms of harm. Those differences left no sufficient basis for importing the single meaning rule.
4. Where a substantial body of reasonable consumers understands a statement in a damaging sense, the existence of another substantial body adopting an innocent meaning does not remove the damaging meaning from legal consideration. The claimant may attempt to prove that the damaging meaning was false, maliciously published and productive of loss. Recognising plural meanings also permits the court to assess malice and damage in their proper context and avoids either denying compensation altogether or awarding compensation as though every reader adopted the damaging meaning.
5. The single meaning rule could not be justified as a necessary balance between freedom of expression and property or reputational interests. Malice is itself an essential control on liability. The lower court’s selection of the innocent meaning therefore could not stand. Consequential orders were left for written submissions.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 609, the court unanimously allowed the appeal and held that the single meaning rule does not apply to malicious falsehood.
2. High Court, Queen’s Bench Division: In [2009] EWHC 1717 (QB), Tugendhat J found both a damaging and an innocent reasonable meaning but applied the single meaning rule, selected the innocent meaning and thereby disposed of the claim.