Dyson Technology Limited v Channel Four Television Corporation

In a defamation claim, an unnamed claimant is identified if the words would reasonably lead persons acquainted with the claimant to believe that it was the person referred to. That test is not confined to reference innuendo. The court must consider both the publication and the claimant’s attributes known to the hypothetical acquainted reader or viewer, rather than investigate what actual recipients knew or thought.

The labels intrinsic and extrinsic reference are unhelpful if they exclude that imputed knowledge. A claimant must plead the attributes relied on. A preliminary issue limited to one route to identification is generally undesirable where it may not resolve the whole issue.

Two UK Dyson companies appealed from [2022] EWHC 2718 (KB). They alleged that a Channel Four News report about abuse in a Malaysian supplier’s factories defamed them.

The High Court held that, on the broadcast alone, it did not refer to either company. It treated their alternative reference-innuendo case as outside the preliminary issue. The appeal concerned the correct test for identifying an unnamed corporate claimant and whether the broadcast referred to the appellants when read by a reasonable viewer acquainted with them.

1. Appeal allowed. The court set aside the order that the broadcast did not refer to the appellants. A hypothetical reasonable viewer acquainted with them would identify both companies as being referred to in the broadcast.
2. A defamation claim requires the words to be of and concerning the claimant. Where the claimant is not named, the governing question is whether the words would reasonably lead persons acquainted with that claimant to believe that it was the person referred to. That test, stated in Knupffer v London Express [1944] AC 116, applies otherwise than in a reference-innuendo case as well as in such a case.
3. Reference innuendo remains a distinct route. It depends on particular facts known to recipients, which must be pleaded and, if disputed, proved. But the ordinary identification inquiry also imputes to the hypothetical reasonable viewer knowledge of the claimant’s pleaded attributes. It does not depend exclusively on the words’ intrinsic content, and it is not an inquiry into what actual viewers knew or understood.
4. The judge erred by drawing a bright line between intrinsic and extrinsic reference and by treating the absence of a full, unique corporate name as decisive. He did not assess the broadcast in the light of the knowledge attributed to a viewer acquainted with the appellants. That viewer would know that Dyson Limited was the UK trading company and that Dyson Technology Limited employed executive staff and retained reputation advisers. The repeated portrayal of Dyson as an iconic British company, together with the Dyson store footage, gave no sound basis for attributing the alleged corporate failings only to another group company.
5. The court endorsed caution about preliminary issues confined to only one means of establishing reference. Such an issue may not save time or costs and may leave meaning unresolved. Lord Justice Birss agreed, adding that the attempted procedural distinction between innuendo and the acquainted-viewer inquiry had caused part of the difficulty.

• Court of Appeal (Civil Division): allowed the appeal in [2023] EWCA Civ 884 and set aside the finding that the broadcast did not refer to the corporate appellants.
• High Court, King’s Bench Division, Media and Communications List: in [2022] EWHC 2718 (KB), determined a preliminary issue and held that the broadcast did not, on the judge’s intrinsic-reference approach, refer to the second and third claimants.