England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2021

Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down will be 10am on 24 February 2021

MR JUSTICE SAINI :

This judgment is in 4 main parts as follows:

I Overview:	paras. [1-6]
II Legal Principles:	paras. [7-13]
III Meaning:	paras. [14-25]
IV Fact/Opinion and defamatory tendency:	paras. [26-30]
Appendix: the Article	paras. [the Article]

I. Overview

1. This is a trial of preliminary issues in a libel claim brought by the Claimant ("Mr Ware") against the Defendant ("Mr French") in relation to an article ("the Article") written and published by Mr French in or around December 2019. The Article concerned the BBC's Panorama programme of 10 July 2019, entitled Is Labour Anti-Semitic? ("the Programme"). Mr Ware was the presenter of the Programme and responsible for its content.
2. The Article was headed Political storm rages over BBC's "rogue" journalism. It is reproduced in an Appendix to this judgment with the addition of paragraph numbers (which I will use below). I will not summarise the Article beyond stating that the broad thrust is a complaint about the accuracy of what was said in the Programme about anti-Semitism in the Labour Party and assertions of one-sidedness on the part of Mr Ware.
3. Mr Ware is a journalist and television producer. Mr French is a retired current affairs producer and editor of a blog Press Gang (www.press.ganguk.wordpress.com), which describes itself as being "an investigative website that exposes rogue journalists".
4. There is no dispute that there was substantial publication of the Article in a number of ways, but the precise scale and nature of publication is for trial in due course. As I have said below, the Article also featured as part of the Pamphlet. In that form it was accompanied by another article entitled "Is the BBC Anti-Labour?". I am satisfied that nothing in this additional text/article alters the meaning of the Article and say nothing further about it in this judgment.
5. On the material before me, there was publication of the Article in the following ways: (i) by inclusion of the Pamphlet in the free online magazine ColdType, which is published via the website coldtype.net; (ii) via the website press-gang.org (by way of a means of a hyperlink to the article on coldtype.net and by reproducing the article in full on press-gang.org itself); (iii) by sending the Pamphlet directly to a hundred or more senior managers and journalists at the BBC; (iv) by handing out copies of it to BBC staff as they entered and left Broadcasting House, the BBC's headquarters, on or about 8 December 2019; (v) by sending copies of the Pamphlet to employees of Channel 4 News, Sky News, LBC, The Guardian, The Times, the Sunday Times and the Sun on Sunday.
6. There are three issues for determination:

i) the meaning of the Article;

ii) whether that meaning in whole or in part constitutes statements of fact and/or opinion; and

iii) whether the meaning as determined by the court defames Mr Ware at common law.

II. Legal Principles

7. Although there were natural differences of emphasis, I did not detect any dispute between the parties on the law. The principles governing the determination of meaning are well-established and were summarised in Koutsogiannis v Random House Group Ltd [2020] 4 WLR 25 at [11].
8. Leading Counsel for Mr Ware also placed particular reliance on Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at p.72 (Lord Bridge) and p.74 (Lord Nicholls) in relation to the relationship in the potential reader's mind between a prominent headline and curative words later in the body of an article.
9. Leading Counsel for Mr French was right to submit that although political speech does not require special rules of interpretation, a political context nevertheless has an impact on the way in which the question of meaning must be approached. I accept that reasonable readers understand that political discourse is often passionate and is not as precise as, say, financial journalism. There is a particular need to avoid over-analysis when determining the meaning of political speech.
10. As to the distinction between fact and opinion, the relevant principles were again helpfully explained in Koutsogiannis at [16] to [17]. The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion. The general guidance in Greenstein v Campaign against Antisemitism [2019] EWHC 281 (QB) at [30]-[37] was also relied upon by Mr French.
11. In Triplark v Northwood Hall [2019] EWHC 3494 (QB), in discussing the statutory honest opinion defence, Warby J observed that "the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion" (at [16]).
12. I am also conscious of the risk of "stifling the answer" to the fact/opinion question by deciding the issue of meaning first: British Chiropractic Association v Singh [2011] 1 WLR 133 at [32]. I accept that the questions are inter-related and the proper approach, particularly in this case, is to consider the issues together.
13. As to what is defamatory at common law, there was no dispute that a statement will be defamatory if it is one that "substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do": Lachaux v Independent Print Ltd [2019] UKSC 27 [2019] 3 WLR 18 at [9].

III. Meaning

14. I approached this issue without first considering the pleaded meanings. I formed my own provisional impression, bearing in mind the overriding context, namely that this was a serious piece of political journalism on a matter of intense recent controversy in current affairs.
15. Although I found the skeletons and oral submissions of real value, ultimately I was not moved from the provisional view I had formed in reading the Article itself. I will provide my meaning at the end of this section. It largely coincides with the position of the Claimant. Detailed written arguments were presented by way of analysis of the detail in the Article (and dissection by paragraph numbers) but I found that this exercise, to some extent, moved me away from the position of the ordinary reader. I have avoided such a surgical approach. I will however set out each party's case and the main points (but not all of them) that they made to me.
16. Mr Ware's case is that the Article bears the following natural and ordinary meaning:

"…That [Mr Ware] is a rogue journalist who had engaged in dirty tricks by deliberately setting out to sabotage the Labour Party's chances of winning the General Election by producing an edition of Panorama in which he dishonestly presented a biased and false portrayal of the case against the Labour Party for anti-Semitism."

17. I was taken sequentially through the text and stress was placed on the following main points by Leading Counsel for Mr Ware:

i) The top of the first and every other page refers to "THE DIRTY TRICKS ELECTION".

ii) The strapline just above the main headline reports that the Labour Party ("LP") has stated that the edition of Panorama in issue "was a deliberate attempt to sabotage its electoral prospects" (§2). By these words the article summarises its message. Paraphrasing Lord Nicholls in Charleston, Mr French has "played with fire" and not included any curative words in the text of the article which detract from or qualify the message in the strapline.

iii) At §4 the BBC is said to have "crossed a line" with the broadcast of "Is Labour Anti-Semitic?" The producer/author is identified as Mr Ware i.e. he is said to have created the programme. The LP is reported to have said that the programme was an "authored polemic" and "an overtly one-sided intervention in political controversy". The BBC is quoted as rejecting "any accusation of bias and dishonesty."

iv) Having quoted the BBC's denial of bias and dishonesty, the Article sides with the BBC's accuser: "The evidence though strongly favours the Labour Party: this was a piece of rogue journalism that presented just one side of the argument, ignored basic facts and bent the truth to breaking point." The latter expression can only amount to an accusation of lying because of the implication that Mr Ware "broke" the truth.

v) Reliance is placed on the fact that in the bottom right of the page the following caption appears next to a cartoon of Jeremy Corbyn: "JEREMY CORBYN: Openly despised by Panorama reporter John Ware." Mr Ware's motive is thereby given; this reinforces the credibility of the accusations being made against him.

vi) The article then proceeds to set out how Mr Ware deliberately used the programme to sabotage the LP's election prospects. Instances are given where he included inculpatory evidence and knowingly/deliberately excluded exculpatory evidence concerning the charges against the LP. See §23 where he is said to have "purged his narrative" and "presented only those party members who conformed to his analysis of the problem, John Ware goes on to present highly one-sided accounts of alleged incidents of anti-Semitism".

vii) At §36 the Article alleges that Mr Ware's "authored polemic" was so one-sided that it broke one of Ofcom's cardinal rules on programmes carrying an appropriately wide range of significant views and ensuring facts are not misrepresented. It was said this was in effect a serious allegation of wrongdoing for which Mr Ware was to be held responsible (wrongdoing which could have serious implications for the BBC: see §§37-38).

18. Mr French's pleaded case (as modified in a minor manner at the hearing before me) advanced the following competing meaning:

"(1) That [Mr Ware] produced a television programme which was one-sided and strongly advocated the position that the Labour Party was anti-Semitic;

(2) That, as a result, [Mr Ware] had engaged in rogue journalism".

19. Leading Counsel for Mr French emphasised that the Article was directed at the "quality" of the BBC's journalism in the Programme and was a piece of serious political journalism on an issue of substantial public interest. He made the following main points in support of the case as to meaning:

i) The BBC is criticised for allowing Mr Ware to present a one-sided programme. It is the BBC which is quoted as "standing by its journalism". Mr French then goes on to state that "this was a piece of rogue journalism".

ii) In the next 34 paragraphs, (excluding captions and quotations which repeat statements made in the body of the Article), Mr Ware is only mentioned by name 10 times, four of which are quotations or summaries of what he says in the programme.

iii) On the other occasions, Mr Ware is criticised for the way in which he deals with complaints statistics and for presenting one-sided accounts of alleged incidents of anti-Semitism.

iv) In the pre-penultimate paragraph it is said that Mr Ware's "authored polemic" (in quotation marks) was so one-sided it broke one of Ofcom's cardinal rules.

v) The allegation that Mr Ware had "engaged in dirty tricks by deliberately setting out to sabotage the Labour Party's chances of winning the General Election" is not found in the Article at all whether expressly or by implication.

vi) As to reliance on the words "Dirty Tricks and the UK General Election" on the front page of the issue of Cold Type magazine in which the Article was published, it would be obvious to a reasonable reader that those words were not written by Mr French but had been placed on the front cover by the editors of the magazine, as a general description to cover all three articles mentioned. (Counsel did however accept that a reader would take into account the strapline in considering the Article as a whole and that there is no issue before me that Mr French is responsible in law for the entirety of the Article- both points which rather rob this submission and the next submission of any real force).

vii) Similarly, the words "The Dirty Tricks Election" across the top of each page were said not to have been placed there by Mr French but are an editorial contribution by the magazine. The claim is not against the editors or publishers of the magazine. The Article itself makes no reference to "dirty tricks".

viii) The Article makes no allegation of "dishonesty" against either Mr Ware or the BBC. (I was referred to the fact that the only references to "dishonesty" in the Article are in a quote from a BBC statement rejecting "any accusations of bias and dishonesty").

20. It was submitted on behalf of Mr French that, considering the Article as a whole, the essential message which a reasonable reader would take away is that (in Mr French's opinion) the Programme – for which Mr Ware was in part responsible – was a one-sided piece of journalism.
21. In my judgment, the meaning of the Article was essentially as pleaded by the Claimant but my own meaning is slightly modified:

"…That [Mr Ware] is a rogue journalist who had engaged in dirty tricks aimed at harming the Labour Party's chances of winning the General Election by authoring and presenting an edition of Panorama in which he presented a biased and knowingly false presentation of the extent and nature of anti-Semitism within the party, deliberately ignoring contrary evidence."

22. I consider the points made by Leading Counsel on behalf of Mr Ware (summarised above at [17]) support this meaning and fairly reflect the language used in the Article. I note, in particular, §23 of the Article, where Mr Ware is said to have "purged his narrative" and "presented only those party members who conformed to his analysis of the problem, John Ware goes on to present highly one-sided accounts of alleged incidents of anti-Semitism".
23. I emphasise that this is the meaning I gather as a matter of overall impression. Also, as I said during oral argument, a reader would note in particular the focus in the Article on alleged misuse of statistics and testimony, and assertions of deliberate misrepresentation of such matters ("bending the truth to breaking point"). One cannot avoid the conclusion that the Article goes substantially beyond an accusation of general one-sidedness which one might encounter in political commentary of a journalist's standpoint on an issue. The claimed knowing falsity of what Mr Ware has presented is a feature which stands out.
24. I also approach the Article on the basis that the reader will have read the strapline and heading as part of the overall reading experience and they are to be taken into account in determining meaning. The connection with "dirty tricks" and damaging election chances is clear.
25. I have not overlooked the fact that this was a work of political journalism on an important issue of public interest. However, Mr French went beyond merely expressing opinions and entered the territory of accusing Mr Ware of deliberate wrongdoing in selectively presenting one side of the story on the national broadcaster (a body with well-known duties of impartiality- which indeed are the subject of the references to Ofcom's code in the Article).

IV. Fact/Opinion and defamation at common law

26. Leading Counsel for Mr French argued that the statements in the Article are recognisable as comment, as distinct from imputations of fact. He submitted that the text sets out inferences, criticisms and observations about the Programme rather than factual contentions.
27. I reject that submission. In my judgment, the allegations conveyed statements of fact and not opinion. Claimed misrepresentation by presenting one side of a story for a particular purpose, and deliberate suppression of an alternative narrative were, in the context of the Article, plainly imputations of fact.
28. I also consider that in the context of the Article as a whole the accusation of "rogue journalism" was an imputation of fact. I agree with the submission on behalf of Mr Ware that readers did not conclude that he was a rogue journalist because he produced a one-sided television programme, they concluded that he was a rogue journalist because that is what the Article told them he was, as well as setting out evidence in support of that conclusion.
29. Finally, to accuse a journalist of behaving in the manner alleged is clearly defamatory at common law. The specific allegations made in relation to a broadcast journalist such as the Claimant are serious matters going to his reputation. I note that the accusation of "rogue journalism" is in any event accepted by Mr French as being defamatory.
30. The preliminary issues are determined accordingly.
APPENDIX TO JUDGMENT: THE ARTICLE