Swan v Associated Newspapers Ltd

In a preliminary libel trial, meaning is assessed by asking what the publication as a whole would convey to the ordinary reasonable reader. The reader may read between the lines, but the court must avoid both literalism and over-analysis. A claimant cannot artificially narrow a publication by selecting isolated passages. Statements may combine fact and opinion; verifiability is relevant but not conclusive, and implied comment is possible. The court must not add a moral judgment supplied only by the reader. Here, the article conveyed a general defamatory charge supported by distinct factual and evaluative imputations. The references to Hitler and the possible causal connection between the claimant's teachings and two suicides were factual meanings, while the references to racism, manipulation and disturbing theories were evaluative comments.

The claimant brought a libel action concerning an article published on MailOnline and linked through Daily Mail Facebook pages. The trial concerned preliminary issues directed by an order of Julian Knowles J dated 28 February 2020, before service of a Defence. The court was asked to determine the article's natural and ordinary meaning, whether its statements were fact or opinion, and the extent to which the meaning was defamatory at common law. The defendant also raised the statutory honest-opinion requirement in Defamation Act 2013 s 3(3), but that issue was reserved for a later occasion.

The court determined the preliminary issues and held that the article conveyed the following overall meaning:

1. The claimant was a cult leader with large ambitions who sought to cultivate devotion, power and fame among many followers.
2. Her beliefs and teachings included silly ideas but also a dangerous underside.
3. She was pathologically manipulative and highly unstable, had propagated outlandish theories, and had persuaded others to accept bizarre and disturbing ideas.
4. She had made racist comments, spoken of Hitler as the greatest contributor to world peace, and made positive statements about death which appeared to endorse suicide.
5. There was a real possibility that her teachings had caused or contributed to two followers killing themselves, and she was to be regarded as terrifying.

Meaning was determined from the article as a whole and from the impression it made on the hypothetical ordinary reasonable reader. The court applied the principles in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), including the need to avoid both the worst and least damaging meanings. The article was not artificially divisible into a non-defamatory first part and a factual second part. Its passages conveyed a general charge supported by overlapping sub-imputations.

The general charge, the references to manipulation, an unstable personality, and the characterisation of theories as outlandish, bizarre and disturbing were comments. The attributed allegations remained relevant under the repetition rule. The term racist was an evaluative term in ordinary language, not a defined legal term or an allegation of an offence under Part III of the Public Order Act 1986. The Hitler passage conveyed a defamatory factual meaning; the explanatory paragraph did not remove its sting.

The article's juxtaposition of the claimant's statements about death and suicide with the deaths of two followers conveyed, at a low level, a factual suggestion of a possible causal connection. The assessment that the deaths made the statements worrisome was opinion. The court treated the Chase levels as guidance rather than a straitjacket and placed the causal imputation at or somewhat below Level 3. The meanings crossed the common-law seriousness threshold. Whether they met the serious-harm requirement in Defamation Act 2013 s 1(1) was not determined.

This was a first-instance preliminary-issues trial directed by an order of Julian Knowles J dated 28 February 2020, before service of the Defence.