Baturina v Times Newspapers Ltd

A publisher’s liability for a defamatory innuendo does not depend on knowing, or reasonably being able to foresee, the extrinsic facts which give apparently innocent words their defamatory meaning. The principle applies to both reference and meaning innuendos. Article 10 does not justify replacing that rule where the established defence of responsible journalism provides an appropriate balance.

A defamation claim is abusive only in the rare case where no real and substantial tort is disclosed. A triable claim capable of attracting more than nominal damages should ordinarily proceed. Where a meaning innuendo depends on unusual knowledge, the claimant should generally identify readers who possessed that knowledge and understood the publication accordingly, so that the defendant knows the case it must meet.

The claimant brought libel proceedings over a newspaper article and its online version. The article inaccurately reported that she had acquired a London mansion through an offshore company. She relied solely on a meaning innuendo: readers aware of a Russian asset-declaration regime and her published declaration would understand the article to allege that she had concealed ownership and failed to make a legally required disclosure.

Eady J, in [2010] EWHC 696 (QB), allowed the claim to proceed for hard-copy readers in Russia and foreseeable Russian republications, but dismissed it for readers of the newspaper in England and Wales and readers of the website. The claimant appealed those dismissals. The publisher cross-appealed, contending that unforeseeability defeated the innuendo claim, that the entire action was abusive, or alternatively that particular readers who understood the innuendo had to be identified.

1. The claimant’s appeal was allowed, and the publisher’s cross-appeal was allowed in part. The claim was permitted in principle to proceed for all four pleaded categories of reader. The claimant was, however, required to identify readers in each category who inferred the alleged innuendo from the article or trailer.
2. A defendant’s liability for defamatory innuendo does not depend upon whether the defendant knew, or could reasonably have known, the extrinsic facts which rendered the publication defamatory. The established reasoning applied equally to reference innuendos and meaning innuendos. Fullam v Newcastle Chronicle showed that the rule extended to a meaning innuendo.
3. Article 10 of the Convention did not compel or justify changing that rule. The responsible-journalism defence recognised in Reynolds v Times Newspapers Ltd ordinarily supplied the additional protection needed for public-interest publication. Any further protection was generally a matter for the legislature. O’Shea v MGN Ltd, even if correctly decided as a limited extension of that defence, did not extend to an untrue newspaper story where no Reynolds defence was available.
4. The action was not an abuse of process. The relevant inquiry was whether it disclosed a real and substantial tort. Although substantial weaknesses cast doubt on the claim’s prospects, it was capable of succeeding and of attracting more than nominal damages. The evidence concerning Russian residents, circulation and website access made it impossible at this interlocutory stage to conclude that no reader in any category could have understood the alleged innuendo.
5. The general pleading rule required identification of persons who possessed the necessary extrinsic knowledge and drew the defamatory meaning. The unusual nature of the alleged inference, the limited evidence of readers making it, and fairness to the publisher justified applying that rule to every category of publication.

Sedley LJ agreed, while observing that the trial court ordinarily determines what a reasonable reader would understand. Evidence from individual readers about their subjective reactions is not automatically admissible, although it may be relevant for a special and limited readership or particular damage. Hooper LJ agreed with both judgments.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 308, allowed the claimant’s appeal and permitted the claim to proceed in principle for all four categories of reader. It allowed the publisher’s cross-appeal to the extent of requiring identification of readers who understood the alleged innuendo.
2. High Court, Queen’s Bench Division: Eady J, in [2010] EWHC 696 (QB), permitted the claim for hard-copy readers in Russia and foreseeable Russian republications, but dismissed it for newspaper readers in England and Wales and website readers.