Thornton v Telegraph Media Group Ltd (Rev 1)

For the purposes of the offer of amends defence under Defamation Act 1996, “reason to believe” imports recklessness, meaning indifference to whether the statement was true or false. The seriousness of a defamatory allegation is relevant to whether failure to check it indicates recklessness, although it does not impose a higher standard of proof. Responsible journalism requires the subject of a defamatory factual allegation to be invited to comment before publication, even where the allegation appears in a review. An opportunity to provide feedback or approve quotations is distinct from copy approval, which gives a right to alter or veto the proposed text. The claim succeeded where the reviewer knew, or was reckless as to whether, the allegations were false.

Sarah Thornton brought claims in libel and malicious falsehood against the publisher of a review of her book, Seven Days in the Art World. The review alleged that she had dishonestly claimed to interview Lynn Barber when no interview had occurred, and that she gave interviewees copy approval.

The Telegraph had made a qualified offer of amends concerning the interview allegation and relied on it as a defence under Defamation Act 1996, section 4. The central issues were whether Barber knew, or had reason to believe, that the interview allegation was false, whether the continuing online publication defeated the defence, and whether the copy approval allegation was knowingly false and malicious.

1. Outcome. The claim succeeded. The qualified offer of amends did not provide a defence because the claimant established the state of mind required by section 4(3) of the Defamation Act 1996.
2. Interview allegation. The statutory phrase “reason to believe” imports recklessness in the sense identified in Horrocks v Lowe [1975] AC 135: genuine indifference to truth or falsity. The claimant bore the burden of proving that state of mind, and the threshold was high, as explained in Milne v Express Newspapers [2004] EWCA Civ 664; [2005] 1 WLR 772.
3. The court found that Barber knew the allegation was false. Alternatively, if she did not know, her failure to check a grave allegation accusing the claimant of dishonesty showed indifference to its truth. Her subsequent failure to respond to complaints and her attempt to recast the issue as whether the conversation constituted an interview reinforced that conclusion.
4. Responsible journalism requires a journalist contemplating publication of a defamatory factual allegation to check the facts and give the subject an opportunity to comment. The fact that the statement appears in a review consisting mainly of comment does not remove that requirement.
5. Online publication. Barber remained a publisher in the legal sense and deliberately misled the Telegraph’s legal adviser. The continuing website publication therefore would also have defeated the offer of amends. The adviser’s mistaken view, without knowledge or recklessness as to falsity, was insufficient by itself.
6. Copy approval allegation. The court distinguished an opportunity to provide feedback or approve quotations from a right to alter or veto copy. The evidence established that the claimant had not granted copy approval and that Barber knew the allegation was false. The allegation was calculated to cause pecuniary damage and constituted malicious falsehood.
7. The court awarded £65,000 damages, provisionally apportioned £50,000 to the libel and £15,000 to the malicious falsehood. The Telegraph’s later apology mitigated damages, but its delay substantially reduced its effect.

The judgment states that the action had a lengthy procedural history, including judgments at [2009] EWHC 2863 (QB), [2010] EWHC 1414 (QB), [2011] EWHC 159 (QB) and [2011] EWCA Civ 748. Those decisions concerned the same litigation and are not treated as separate cited authorities in this package.