Sube & Anor v News Group Newspapers Ltd & Anor

A publication is defamatory only if it conveys an imputation which tends to cause serious reputational harm by the standards of reasonable society generally. Derogatory opinions about conduct may fall below that threshold, particularly where the underlying facts are stated, the evaluation is mild and its source lacks special authority.

Evidence of hostile reader reactions cannot convert a non-serious imputation into an actionable one, although it may bear on damages after the statutory threshold is crossed. Whether several harmful imputations conveyed by one article should be assessed collectively was left open.

Claims alleging malice, corporate wrongdoing or unlawful data processing must identify the relevant conduct, individuals, states of mind and factual basis with adequate particularity. Press publication to the public at large does not itself fall within the services or public-functions provisions of the equality legislation.

The claimants, a married couple with eight children, complained of national newspaper articles about their dispute with a local authority over housing. They brought claims in defamation and harassment and sought to add claims in malicious falsehood, racial discrimination and data protection. They also relied on offensive reader comments published on newspaper and third-party websites.

The court tried preliminary issues concerning the natural and ordinary meanings of the articles, whether those meanings were defamatory and whether they were fact or opinion. It also determined applications to disallow amendments, strike out claims, amend the harassment and data protection claims, and stay the existing data protection claims.

The central questions were which causes of action disclosed a legally sustainable and adequately pleaded case, and whether the meanings conveyed by the articles crossed the serious-harm threshold in section 1 of the Defamation Act 2013.

1. Defamation: The articles conveyed no defamatory factual imputations. They conveyed derogatory opinions that the claimants were arrogant, greedy, unreasonable, ungrateful or taking undue advantage of welfare entitlements. Considered individually, none had a tendency to cause serious reputational harm under section 1 of the Defamation Act 2013. The seriousness of an imputation depends on the importance of the societal norm involved, its context, its recognisable character as opinion and the authority of its source. The court left open whether multiple imputations conveyed by a single article should instead be assessed collectively.

2. Hostile reader posts could not establish serious harm where the words complained of did not themselves convey a sufficiently serious defamatory imputation. A post reflecting a meaning which the court had not found was irrelevant. A strong reaction to a defamatory meaning actually conveyed might, after the statutory threshold was crossed, be relevant to damages.

3. The allegation that reader posts were defamatory was struck out because no libel claim was pursued in respect of them. The remaining allegations concerning the posts could support other causes of action. Permission was granted to extend the harassment claim to reader comments published on the defendants’ own websites.

4. The exemplary-damages plea was struck out. Such a claim must be attached to an individual tort and must plead guilty knowledge, the relevant profit calculation and the responsible corporate individuals. Publication for profit, without more, was insufficient.

5. The malicious-falsehood claim was disallowed and struck out. It failed to connect particular falsehoods and malice to individual publications, identify any malicious individual, or plead facts more consistent with malice than its absence. Its claim that publication was likely or calculated to cause pecuniary loss was fanciful.

6. The equality claims were disallowed and struck out. Press or online publication to the public at large was outside the relevant statutory contexts. The defendants were not performing public functions, and the complaint concerned services supplied to readers rather than a prohibited act in providing a service to the claimants. The pleaded indirect-discrimination case also failed to identify a qualifying provision, criterion or practice.

7. The existing data protection claim under section 10 of the Data Protection Act 1998 disclosed an arguable case and was not struck out as premature. It was stayed against News Group under section 32(4) following its statutory claim that the data were processed for journalistic purposes with a view to publication. The claim against the Express was stayed under the court’s case-management powers. Proposed amendments were refused because they failed adequately to identify the personal data, processing and alleged breaches.

Not stated in the judgment. This was a first-instance determination of preliminary issues and interlocutory applications.