Rufus v Elliott

On an application concerning whether words were capable of bearing a defamatory meaning, the court had to consider the natural meaning of the publication and whether it could tend to lower the claimant in the estimation of right-thinking members of society generally. Reporting wrongdoing to the relevant authorities is not defamatory merely because it may expose the reporter to odium among a section of society. However, alleging disloyalty in making public a private communication, rather than reporting a crime to the authorities, may be defamatory. The court must assess the publication in context, disregard the publisher’s intention, avoid strained meanings and apply the threshold of seriousness required by the law of defamation.

The claimant, a former professional footballer, brought a libel claim concerning a press release issued by the defendant, also a former professional footballer and former trustee of Kick It Out. The press release stated that a former friend and business colleague had made public a private text message in which the defendant had used a derogatory term. Read with an earlier newspaper article, the claimant pleaded that the press release meant that he had acted dishonourably and disloyally by betraying the defendant and making public a private communication.

The defendant applied for a determination that the words were incapable of bearing the pleaded defamatory meaning and for the claim to be struck out. The issue was limited to capability, not the actual meaning at trial.

1. Application refused in substance. The statement was capable of bearing the pleaded meaning and was capable of being defamatory of the claimant.
2. The governing principles were those summarised in Jeynes v News Magazines Limited [2008] EWCA Civ 130: the court applies reasonableness; reads the publication as a whole and in context; disregards the publisher’s intention; avoids over-elaborate analysis; and excludes meanings dependent on strained or unreasonable interpretation.
3. The relevant test was whether the words would tend to lower the claimant in the estimation of right-thinking members of society generally. The words had also to satisfy the required threshold of seriousness. Damage only in the eyes of a particular section of the public was insufficient.
4. The informer authorities supported a distinction between reporting crime to relevant authorities and exposing a private act to the public. It could not be defamatory to allege disloyalty in reporting a crime to the relevant authorities, even if criminals or persons sympathising with crime might condemn the reporter. By contrast, an allegation of disloyalty in a non-criminal context could be defamatory, even where the underlying conduct was lawful.
5. The defendant’s use of an extremely offensive term did not make publication of the private message incapable of being defamatory. Right-thinking members of society might regard exposing a private communication, with the consequence that the former friend lost office, as disloyal and wrong. The pleaded meaning was not impermissibly elaborate, and the words “private” and “public” were capable of contributing to the defamatory meaning.
6. The court took no account of the defendant’s apparent intention or of online comments when determining capability. The claimant’s subsequent bankruptcy did not alter the conclusion on defamatory capability.