McEvoy v Michael

A person may be liable as a publisher of defamatory material without being its author. Liability arises where the person knowingly participates in, authorises or assumes responsibility for publication, including through an approval process. Mere passive involvement or knowledge of draft material is insufficient.

The meaning of allegedly defamatory words must be determined from the publication as a whole, read as a reasonable reader would understand it. Political publications may contain robust criticism which is not defamatory. Allegations of hypocrisy, dishonesty or conflicts of interest may constitute defamatory comment where they are presented as inferences from stated or implied facts.

The claimant, a Cardiff councillor, alleged that the defendant published defamatory words and an altered image in two Labour Party newsletters. The defendant denied responsibility, contending that the newsletters were produced by another party activist and that his name appeared only to satisfy statutory imprint requirements.

Preliminary issues concerned publication, meaning, whether the words were fact or comment, and defamatory tendency. The court also considered whether several passages amounted to political criticism, allegations of hypocrisy, dishonesty or conflict of interest.

1. Publication. The defendant was legally responsible for publishing both newsletters. Responsibility did not depend on authorship. He was involved in the local branch’s campaigning strategy, received and considered drafts, participated in the approval process, supported the agreed attack format and distributed copies of one issue. His approval could also be inferred from the circumstances. The Promotion Statement was, in the particular circumstances, an assumption and accurate expression of responsibility for publication. The case was materially different from Underhill v Corser [2010] EWHC 1195 (QB), where passive knowledge and inaction were insufficient.
2. Meaning. The words had to be read in their full textual and political context. The court applied the approach in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, including the reasonable-reader standard, avoidance of strained meanings and reading the publication as a whole.
3. The “Snouts in the Trough” passages conveyed criticism of hypocrisy in taking advantage of an expenses regime after criticising others for doing so. References to trips, property income and childcare allowance conveyed factual imputations accompanied by defamatory comment, but did not allege unlawful entitlement or disproportionate remuneration. The planning passage conveyed hypocrisy and unrealistic political or football plans, but not personal enrichment or bad faith.
4. The altered image conveyed money-seeking enterprise, receipt of “free child care”, hypocrisy by context, and unrealistic fantasies or improbable business ideas. It did not convey dishonesty, criminality, bad faith concerning a trip to China, or a personal financial motive for the business park.
5. The Fairwater Football Club passage conveyed, by implication, that the claimant had misled the club through false assurances and had been influenced by a commercial conflict of interest. Those allegations were comment, being inferences from the surrounding facts. The PACT panel passage was a non-defamatory instance of robust political criticism.
6. The court determined the preliminary issues accordingly. The parties were invited to agree the form of order and outstanding matters, including costs. The time for seeking permission to appeal was extended pending further directions.