Digital Isle Limited v Marcos Enterprise Limited & Anor

Meaning in a defamation claim is determined by the single natural and ordinary meaning conveyed to the hypothetical ordinary reasonable reader, assessed in context and without over-elaborate analysis. An online complaint made by a seller through an e-commerce platform may convey factual allegations based on the complainant’s experience, while conclusions expressed as illegality or infringement may be opinion if the basis is apparent from the complaint. The court is not bound by the meanings advanced by the parties, but may not adopt a meaning more injurious than the claimant’s pleaded meaning. Allegations that a company sold counterfeit goods and infringed trademark rights were defamatory at common law.

The claimant, an online retailer using Amazon’s platform, brought claims in defamation and malicious falsehood against a competing company and its director. It complained of messages sent to Amazon alleging that it sold counterfeit Velcro products, infringed Velcro’s trademark and used Velcro branding improperly.

The court was directed to determine preliminary issues concerning the natural and ordinary meaning of the complaint, whether it was defamatory, whether it comprised fact or opinion, and, for any opinion, whether its basis was indicated. The trial was confined to the meaning of the two communications made on 3 June 2023.

1. Meaning. The complaint had to be read once, in its proper context, by the hypothetical ordinary reasonable reader. The relevant context included Amazon’s online complaints process, the fact that the communication was made by a seller, and the description of the communication as concerning a product that was not as described. The court was not required to adopt either party’s proposed meaning.
2. The natural and ordinary meaning was that TR Sales was selling counterfeit Velcro products on Amazon in place of genuine products. It also meant that the claimant had infringed Velcro’s trademark and had used Velcro’s branding next to its own branding to make it appear to be the manufacturer. The word “counterfeit”, rather than Amazon’s later use of “inauthentic”, governed the meaning. The meaning was properly confined to sales on Amazon.
3. Fact and opinion. The identification of the products as counterfeit was a statement of fact, understood as information based on the seller’s experience of the product. The references to infringement, illegal use of branding and illegal activity were expressions of opinion. The complaint itself indicated the basis of that opinion.
4. Defamatory meaning. The complaint was defamatory of the corporate claimant at common law because it stated that the claimant was guilty of wrongdoing, including infringement of Velcro’s rights and illegal use of Velcro branding. The court rejected the submission that the complaint merely invited Amazon to investigate the allegations.
5. The preliminary issues were determined accordingly. The court did not decide whether the allegations were true or determine any other issue in the claim.