Dr ARUJUNA SIVANANTHAN v THURAIRAJAH VASIKARAN

In determining the natural and ordinary meaning of conversational social-media posts, the court applies an objective reasonable-reader test. The posts must be read quickly and impressionistically, but in their directly available conversational context. The court should avoid literalism, strained interpretation and over-elaborate textual analysis. Context may include matters of common knowledge, material incorporated by express reference and material reasonably available to all publishees. The distinction between fact and opinion is also objective and depends on the substance and impression of the words, not the writer’s intention or label. Allegations may be defamatory where their inherent tendency substantially affects attitudes towards the claimant or imputes serious wrongdoing, without proof of actual impact at that stage.

The claimant, a political activist and chair of the British Tamil Conservatives, brought a libel claim against the defendant concerning posts made to a shared WhatsApp group in July and October 2019. The claim was listed for trial, but the judge heard preliminary submissions on the posts’ single natural and ordinary meaning, whether they conveyed fact or opinion, and whether they were defamatory at common law.

The court considered the surrounding WhatsApp conversation and a letter from Boris Johnson referred to in the posts. The preliminary ruling was intended to clarify the issues and assist future case management.

1. Meaning. The court found that the July posts accused the claimant of misleading or misinforming Boris Johnson, causing a reference to deepening ties with Sri Lanka, thereby undermining or reversing the Tamil community’s work and wasting its resources. The October post accused him of taking credit for the BTF’s achievements, including the Geneva visit, and of further undermining others in the Tamil community. It also conveyed that he had breached the BTC Constitution to advance his own interests.
2. Fact and opinion. The allegation that the claimant caused the contents of Mr Johnson’s letter was a statement of fact. The assertion that the effect was to undermine the community’s efforts and resources was opinion. The October allegations concerning backstabbing and isolating contributors were too allusive and unparticularised to add more specific meaning. The alleged breach of the BTC Constitution was factual, while the attribution of personal motive was opinion.
3. Defamatory tendency. The posts imputed serious personal wrongdoing, unethical and self-serving conduct, and disloyalty. Their political setting did not reduce the personal sting of the allegations. They therefore had an inherent tendency substantially to affect readers’ attitudes towards the claimant and were defamatory at common law.
4. Further proceedings. The ruling was preliminary. If the claim continued, the claimant would still need to establish serious harm under section 1 of the Defamation Act 2013. The defendant would bear the burden of proving substantial truth under section 2, justification of opinion under section 3, or another available defence.

The judgment records that the claim had been listed for a three-day trial following extensive case management, including an order made by Master Dagnall in October 2021. The present court gave a preliminary ruling before trial on meaning, fact or opinion, and common-law defamatory tendency.