Donovan v Gibbons

Material published about a trader may be defamatory of the individual where the trader is named as the seller, even if the business is also implicated. A publication may convey an allegation of fact, rather than comment, where its ordinary meaning asserts that the seller supplied an unsuitable or dangerous product and knew of the relevant defect or characteristic at the time of sale. Whether words are fact or comment depends on how they would strike the ordinary reasonable reader, having regard to their subject matter and context. Comment must identify, at least generally, the facts on which it is based. An inferential conclusion drawn by the reader does not become comment where the publication itself conveys the imputation as part of its intrinsic meaning.

The claimant, who sold polo ponies through a company trading as PharmaPoloPonies, sued over YouTube videos published by the defendant after a dispute about the suitability of a pony for children. The videos showed the pony bucking and described it as dangerous, while alleging that the claimant had sold it as suitable for children.

The publications straddled 1 January 2014. The defendant relied on common-law honest comment for earlier publication and statutory honest opinion under the Defamation Act 2013 for later publication. By consent, the court was asked to determine meaning and whether the words were fact or comment. The issue of serious harm under section 1 of the Act was left open.

1. Defamatory character. The material was capable of defaming the claimant personally. The claimant was named as the seller and the publication did not refer to the company. In any event, it reflected adversely on her business reputation by alleging that she supplied a product below the required standard and likely to cause adverse consequences to the customer.
2. Fact and comment. The court applied the established distinction between fact and comment. The statement must be recognisable as comment; comment involves a deduction, inference, conclusion, criticism or observation; the decisive question is how the words would strike the ordinary reasonable reader; and context may be important. Comment must also indicate, at least in general terms, the facts on which it is based. A reader need not be able to assess whether the comment is well founded, but must understand what it concerns.
3. Meaning. The videos and words conveyed that the claimant had sold a dangerous pony as suitable for children, although she must have known that it was unsuitable. The pony’s behaviour was presented as characteristic rather than exceptional. The reference to scandal reinforced the imputation of knowledge. The allegation of knowledge was part of the intrinsic meaning of the publication, not an opinion formed by the defendant or a comment merely because the reader reached it inferentially. The material therefore alleged fact and was defamatory in both business and personal senses.
4. Scope of decision. The court decided the common-law issue only. It expressly left the statutory serious-harm issue for publication continuing in 2014 to be determined after the claimant had an opportunity to provide evidence. The strike-out application was not considered because it was unnecessary.

First-instance decision in the High Court. The judgment does not state any prior appellate decision.