Zarb-Cousin v Association of British Bookmakers & Anor

The natural and ordinary meaning of a publication is its single objective meaning to the hypothetical reasonable recipient, assessed from the publication as a whole. Political or partisan context informs that assessment but does not alter the governing rules or strip clearly defamatory words of their meaning.

Whether an allegation is fact or opinion depends on its overall impression and context. There is no fixed rule that an allegation of dishonesty is necessarily factual. The question is whether the recipient would recognise it as the speaker’s deduction or inference.

A seriously defamatory meaning will ordinarily support an inference of serious reputational harm. An allegation giving reasonable grounds to suspect that a campaigner deliberately supplied inaccurate information for payment may satisfy both the common-law seriousness threshold and section 1 of the Defamation Act 2013.

The claimant brought libel proceedings over words spoken by the second defendant, on behalf of the first defendant, during a live Channel 4 News debate about fixed odds betting terminals. The second defendant described the claimant’s presentation as deliberate and conscious misportrayal by a man funded by the casino industry. The claimant immediately denied the allegation.

At a preliminary-issue trial, the court had to determine the words’ natural and ordinary meaning, whether that meaning was defamatory at common law, whether it supported an inference of serious harm under section 1 of the Defamation Act 2013, and whether the words were opinion which indicated the basis of that opinion.

1. Preliminary issues determined substantially in the claimant’s favour. The words bore the single meaning that there were reasonable grounds to suspect that the claimant was willing deliberately to mislead the Channel 4 News audience with inaccurate information because the casino industry paid him to do so. This was a Chase level 2 meaning rather than an allegation of guilt because the claimant’s immediate and emphatic denial formed part of the broadcast’s overall context.

2. The court rejected the submission that political or partisan speech is governed by a more indulgent rule of meaning. Context remained crucial, but the objective meaning of words assessed in their proper context was constant. Protection for political expression was supplied by the substantive defences and Article 10, rather than by distorting ordinary meaning or reclassifying fact as opinion.

3. The statement was factual, not opinion. Although describing the claimant’s presentation as a misportrayal might in isolation appear evaluative, the allegation that he was funded by the casino industry was introduced as a fact supporting the accusation of deliberate and conscious misrepresentation. The statement had to be assessed as a whole. Its overall impression was that the claimant was a paid mouthpiece whose information could not be trusted.

4. There is no inflexible rule that an allegation of dishonesty must always be treated as fact. The decisive question is whether, in context, the recipient would understand the statement as the speaker’s deduction or inference. Over-prescriptive rules, including a separate inquiry into whether an allegation is verifiable, risk obscuring that contextual assessment.

5. The meaning was defamatory at common law because it attacked the claimant’s integrity and substantially affected, or tended substantially to affect, other people’s attitude towards him. Although it alleged only reasonable grounds for suspicion, it gave viewers real reason to doubt his reliability.

6. The court drew the inference of serious harm under section 1 of the Defamation Act 2013. The allegation struck at the claimant’s integrity and had been communicated to hundreds of thousands of viewers. Its Chase level 2 character did not make it insignificant.

7. The statutory opinion issue did not require decision. Had the words been opinion, the claimant’s contributions to the debate indicated in general terms the basis for the criticism of misportrayal. They did not indicate any basis for the separate claim that the casino industry funded him.

By an order dated 9 May 2018, Master Thornett directed a trial of preliminary issues concerning meaning, common-law defamation, serious harm under section 1 of the Defamation Act 2013, and whether the words were opinion whose basis was indicated. The High Court determined those preliminary issues in this judgment.