ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
 EWCA 1717 (QB)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
SIR SCOTT BAKER
| AJINOMOTO SWEETENERS EUROPE SAS
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Mr Andrew Caldecott QC and Mr Manuel Barca (instructed by Kempner Robinson Llp) for the Respondent
Hearing dates: 11 and 12 May 2010
Crown Copyright ©
Lord Justice Sedley :
"… the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it.
Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel.
Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the 'right' meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right,' survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel."
A: That aspartame is harmful or unhealthy.
B: That there is a risk that aspartame is harmful or unhealthy.
C: That aspartame is to be avoided.
The defendant averred that it meant
D: That these foods were for customers who found aspartame objectionable.
Does the single meaning rule apply to malicious falsehood?
The appellant's case
"As a comparative stranger to this branch of the law I find the "one meaning rule" strange, particularly for malicious falsehood. Without authority, I should have thought it would be enough to satisfy the criterion of falsity for the plaintiff to prove that the defendant made a statement which was false to a substantial number of people. That, for instance, is the position in passing off (a tort also concerned with false representations): for that tort it is enough to show that the representation fools some of the people, even if not most of them.
The reason for the libel rule in part relates to the entitlement of jury trial for libel (as Diplock LJ explained in Slim). Save in exceptional circumstances the right jury trial remains for libel and slander (see section 69(1) of the Supreme Court Act 1981) but there is no such right in relation to malicious falsehood. So it by no means follows that the historical reason for the rule in libel should apply to malicious falsehood. Another reason for the rule relates to the function of a jury in awarding damages for defamation: unless one has settled on a particular meaning one cannot judge the extent of the defamation. But in malicious falsehood damages are rather different: they are essentially compensatory for pecuniary loss as for most other torts. So again it does not seem necessarily to follow that the libel rule should apply to the tort. However, as I say, the parties were agreed that I should proceed on the basis that I am a notional jury identifying the single meaning of the words complained of."
"To insist upon an innocent interpretation where any reasonable person could, and many reasonable people would, understand a sinister meaning is to refuse reparation for wrong that has in fact been committed."
"Newspaper readers will have seen only the banner headline and glanced at the picture. They will not have read the text of the accompanying article. In the minds of these readers, the reputation of the person who is the subject of the defamatory headline and picture will have suffered. He has been defamed to these readers. The newspaper could have no cause for complaint if it were held liable accordingly. It has chosen, for its own purposes, to produce a headline which is defamatory. It cannot be heard to say that the article must be read as a whole when it knows that not all readers will read the whole article.
To anyone unversed in the law of defamation that, I venture to think, would appear to be the common sense of the matter. Long ago, however, the law of defamation headed firmly in a different direction. The law adopts a single standard for determining whether a newspaper article is defamatory: the ordinary reader of that newspaper."
If this would, but for historical accidents, be the commonsense approach to defamation, why abandon common sense, Mr Price asks, when the claim is for malicious falsehood?
The respondent's case
"The hypothetical reasonable reader … must be treated as being … someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available."
21. ….The "single meaning" rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd  2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless, given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptionable.
"We hold strongly that this is the correct test since it most nearly approximates to the actual meaning or meanings which the actual readers of the publication as a class are likely to have placed upon the words complained of."
If this makes sense in libel, it is submitted, it makes equal sense in malicious falsehood.
Lord Justice Rimer:
Sir Scott Baker: