Thornton v Telegraph Media Group Ltd

Defamation requires a threshold of seriousness. This applies to personal and business or professional libel. The words must be likely to affect adversely the attitude of others towards the claimant, rather than merely cause a trivial change in opinion.

An allegation that a writer gave interviewees copy approval was not capable, without more, of imputing personally reprehensible conduct, dishonesty or lack of integrity. Nor was it professional libel where the criticism concerned a writing technique that could reflect a legitimate choice between acceptable standards for different readerships, rather than professional incompetence or deficient conduct.

Dr Thornton, an author and writer, sued Telegraph Media Group Ltd in libel and malicious falsehood over a review of her book. The defendant applied for summary judgment concerning the reviewer's statement that the claimant's form of reflexive ethnography gave interviewees an opportunity to read and alter what was said about them, a practice described as copy approval in journalism.

The application followed earlier High Court proceedings, including Sir Charles Gray's ruling that the fair-comment defence had no real prospect of success because the review materially misstated a fact: [2009] EWHC 2863 (QB). The central issue was whether the copy-approval allegation was capable of bearing the pleaded personal or professional defamatory meanings.

1. Application granted. The defendant obtained summary judgment in relation to the allegation concerning copy approval. The words were not capable of bearing the pleaded meanings that the claimant had engaged in highly reprehensible conduct or was untrustworthy, or fatally lacking in integrity and credibility as a researcher and writer.

2. The definition of defamatory matter contains a threshold of seriousness. That threshold excludes trivial claims and applies equally to personal and business or professional defamation. It reflects the proper reading of Sim v Stretch [1936] TLR 669, and is reinforced by the need to respect freedom of expression under Human Rights Act 1998 and article 10 of the Convention. The preferable formulation directs attention to whether publication adversely affects, or tends adversely to affect, other people's attitude towards the claimant.

3. Read alone, the copy-approval allegation criticised a professional practice. It did not impute conduct that was personally reprehensible in ordinary language. The separate allegation concerning an asserted interview with the reviewer did not alter that conclusion. A reasonable reader would understand the two paragraphs as distinct criticisms on distinct topics.

4. The allegation was also not capable of constituting professional libel. Unlike occupations subject to a single required professional standard, writers may legitimately write to different standards for different readerships and markets. Absent a pleaded imputation of hypocrisy, dishonesty, or a true innuendo arising from special knowledge, criticism that a writer did not follow journalistic standards for copy approval did not indicate that she conducted her profession badly or inefficiently. In any event, the alleged meaning did not surmount the required threshold of seriousness.

• Court of Appeal: On 29 March 2010, a renewed oral application for permission to appeal from Sir Charles Gray's order was adjourned to allow the defendant to make the present application.
• High Court: Sir Charles Gray held that the defendant had no real prospect of succeeding on fair comment because the review materially misstated a fact: [2009] EWHC 2863 (QB).
• High Court: On 22 January 2010, Tugendhat J struck out part of a pleaded allegation of malice in the aggravated-damages claim.
• High Court: In this ruling, Tugendhat J granted summary judgment for the defendant on the copy-approval allegation.