Thornton v Telegraph Media Group Ltd

Defamation requires a threshold of seriousness which excludes trivial claims. That requirement applies to personal and professional defamation and reflects freedom of expression and proportionality. For allegations of personal misconduct, the relevant adverse effect concerns other people's attitude towards the claimant and their likely treatment of the claimant. A tendency towards adverse consequences suffices; actual consequences need not be proved. Where writers may choose between acceptable standards for different readerships, an allegation that they adopt one standard rather than another is not, by itself, defamatory. Context, a pleaded discrepancy between professed and actual standards, or a true innuendo may alter that conclusion. On a capability application in a jury action, a meaning may be excluded only where a jury taking a different view would be perverse.

Dr Sarah Thornton, an author and writer specialising in sociology and ethnography, brought proceedings against Telegraph Media Group Ltd, the publisher of The Daily Telegraph, over a review of her book Seven Days in the Art World. The reviewer, Lynn Barber, alleged that Dr Thornton allowed interviewees to alter material about themselves, a practice described as copy approval and disapproved of in journalism. A separate passage alleged that Dr Thornton had falsely claimed to have interviewed Ms Barber. The defendant admitted a defamatory meaning concerning that separate passage and relied on an offer of amends.

The defendant sought summary judgment, alternatively a capability ruling, concerning only the copy approval allegation. Sir Charles Gray had previously found that the fair comment defence had no real prospect of success because the review materially misstated its factual basis: [2009] EWHC 2863 (QB). A renewed application for permission to appeal was adjourned to allow the present application. The central questions were whether the copy approval allegation could constitute personal or professional defamation and whether defamation required a threshold of seriousness.

The application for summary judgment succeeded in relation to the first paragraph's allegation concerning copy approval. The remaining allegations were outside the application.

1. A capability ruling in a jury action required a high threshold of exclusion. The court could exclude a meaning only where a jury adopting it would be perverse. The inquiry concerned what a jury could sensibly understand, approached generously. The reasonable reader principles required consideration of the whole publication without strained interpretation: Jameel v The Wall Street Journal Europe Sprl, Berezovsky v Forbes Inc and Jeynes v News Magazines Ltd.

2. Every definition of defamation required a qualification or threshold of seriousness excluding trivial claims. This followed from the proper interpretation of Lord Atkin's speech in Sim v Stretch and from Article 10 and proportionality following the Human Rights Act 1998. The distinction between discourtesy and actionable attacks on character formed part of the ratio in Sim v Stretch. Professional defamation was subject to a similar threshold.

3. For personal imputations of the kind under consideration, the preferred definition concerned an adverse effect on other people's attitude towards the claimant. Their likely treatment of the claimant mattered, rather than merely their thoughts or opinions. A tendency towards adverse consequences was sufficient; actual adverse consequences need not be proved. The court conditionally suggested adding substantiality if the existing formulation lacked a seriousness threshold, but left any higher threshold undefined.

4. The applicable standards were those of society generally. The parties' shared disapproval of copy approval could not establish personal defamation. Read alone, the allegation was incapable of imputing reprehensible personal conduct. Alternatively, it fell below the seriousness threshold. Reading the review as a whole did not change that conclusion: the two paragraphs made distinct criticisms on distinct topics, and the separate allegation of dishonesty did not transform criticism of professional practice into personal defamation.

5. Professional defamation could arise without moral blame, but required an adverse reflection on professional or business reputation. The principles recognised in Derbyshire County Council v Times Newspapers Ltd concerned tendencies towards adverse business consequences. Writers could choose acceptable standards for different readerships, unlike professionals subject to a single minimum standard. The comparison with sporting performance in Dee v Telegraph Media Group Ltd supported that distinction. The dental and colliery circumstances in Drummond-Jackson v British Medical Association and South Hetton Coal Company Limited v North-Eastern News Association Limited could not be translated to this allegation. Without a pleaded meaning such as hypocrisy or a true innuendo, alleging that the book departed from journalistic copy approval standards was incapable of professional defamation. Alternatively, it fell below the seriousness threshold. Any remedy for that allegation lay in malicious falsehood.

• Court of Appeal: Permission to appeal Sir Charles Gray's order was refused on paper. The renewed oral application on 29 March 2010 was adjourned to give the defendant an opportunity to bring the present application.
• High Court (Queen's Bench Division): Sir Charles Gray's judgment of 12 November 2009, [2009] EWHC 2863 (QB) , found no real prospect of the fair comment defence succeeding because the review materially misstated a supporting fact. On 22 January 2010, Tugendhat J struck out part of an allegation of malice in the aggravated damages claim. In the present first instance ruling, he granted summary judgment concerning the copy approval allegation.