Die
Lunae, 3°
Aprilis, 1944
Parliamentary
Archives,
HL/PO/JU/4/3/976
KNUPFFER (PAUPER)
v.
LONDON EXPRESS NEWSPAPER
LIMITED
The Lord Chancellor
MY LORDS,
Lord
Chancellor
Lord Atkin
Lord
Thanker-
ton
Lord
Russell of
Killowen
Lord
Porter
It is an essential element of the cause of action
for defamation that
the words complained of should be published "
of the plaintiff ". If
the words are not so published, the
plaintiff is not defamed and
cannot have any right to ask that the
defendant should be held
responsible to him in respect of them. In
the case now before us
the learned trial Judge, Mr. Justice
Stable, decided that the words
of the libel did refer to the
plaintiff. The Court of Appeal, con-
sisting of Lord Justice
MacKinnon and Lord Justice Goddard,
decided that the words could
not be regarded as referring to the
plaintiff, and consequently
allowed the appeal and dismissed the
action. This is the issue
which we now have to decide.
The Defendants printed and published in their newspaper
on July
ist, 1941, the words following, which are set out in the
Statement of
Claim: —
" But the quislings on whom Hitler flatters himself
he can
" build a pro-German movement within the Soviet Union
are
" an émigré group called Mlado Russ or
Young Russia.
" They are a minute body professing a pure Fascist
ideology
" who have long sought a suitable fuehrer—I
know with what
" success. Established in France and the
United States they
" claim to have secret agents able to
enter or leave the Soviet
" Union at will.
" Hitler intends to nominate a puppet fuehrer from
their
" ranks to replace the Soviet national leaders of the
Kremlin,
" and establish a reactionary totalitarian serf
State on the
" German and Italian model.
" The proposed line of operation is the seducing of
Red Army
" officers from their allegiance to their country
and with their
" aid destroying trade unions, co-operatives,
collective farms,
" and the Soviet Parliamentary system with
a ruthless massacre
" of all the present leaders, great and
small, of the Russian
" people.
" The vast majority of Russian émigrés
repudiate these
" people, but Hitler is accustomed to find
instruments among
" the despised dregs of every community. He
intends Ukrainian
" pogroms as a starting point for general
anarchy in Russia."
In these words there is no specific mention of the
Plaintiff from
beginning to end, and the only countries in which
it is stated that
this group of émigrés is
established are France and the United
States. Evidence was given
at the trial that the Plaintiff had joined
the Young Russia Party
in 1928, that in 1935 he became Assistant
Representative of the
Young Russia Movement in Great Britain,
and that in 1938 he was
appointed Representative of the Movement
in Great Britain and head
of the British Branch of the Movement.
The headquarters of the
Movement were in Paris until June 1940
when they were removed to
America.
These facts standing alone, however, do not justify the
con-
clusion that the words complained of are capable of being
read
as a defamation of the Plaintiff. The words make
allegations
of a defamatory character about a body of persons—some
thou-
sands in number—who belong to a Society whose members
are
to be found in many countries. In O'Brien v. Eason [1913]
47
Irish L.T. 266, Holmes L.J. and Cherry L.J. ruled that where
com-
ments of an alleged defamatory character were made upon an
34592 A
2 [2]
association called the Ancient Order of Hibernians, an
individual
member of the Order, who was not named nor in any way
referred
to, could not maintain an action of libel. They
referred to a well
known dictum of Willes J., uttered more than 50
years before, in
Eastwood v. Holmes [1858 ]I F. &
F. at p. 349 that " if a man wrote
" that all lawyers
were thieves, no particular lawyer could sue him
" unless
there is something to point to the particular individual".
Where
the Plaintiff is not named, the test which decides whether the
words
used refer to him is the question whether the words are such
as
would reasonably lead persons acquainted with the Plaintiff
to
believe that he was the person referred to. There are cases
in which
the language used in reference to a limited class may be
reasonably
understood to refer to every member of the class, in
which case
every member may have a cause of action. A good
example is
Browne v. Thomson & Co. 1912 S.C.
359, where a newspaper
article stated that in Queenstown
instructions were issued " by the
"Roman Catholic
religious authorities that all Protestant shop
"
assistants were to be discharged ", and where 7 pursuers
who
averred that they were the sole persons who exercised
religious
authority in name and on behalf of the Roman Catholic
Church in
Queenstown were held entitled to sue for libel as being
individually
defamed. Lord President Dunedin in that case said
at p. 363, " I
' think it is quite evident that if a certain
set of people are accused
' of having done something, and if such
accusation is libellous, it is
' possible for the individuals in
that set of people to show that they
' have been damnified, and it
is right that they should have an
' opportunity of recovering
damages as individuals." In the present
case, however, the
Appellant rejected the view that every member
of the Young Russia
Group could bring his own action on the words
complained of, and
relied on his own prominence or representa-
tive character in
the Movement as establishing that the words
referred to himself.
There is, however, nothing in the words which
refers to one member
of the Group rather than another. Le Fanu v.
Malcolmson (1848)1
H.L.C. 637 was, it is true, a decision of this
House in which Lord
Chancellor Cottenham and Lord Campbell
held that the verdict of a
jury awarding damages to the owners of
a factory in the County of
Waterford against the proprietor of a
newspaper published in that
County could be upheld, notwithstand-
ing that the letter-press in
the course of denouncing the alleged
cruelty with which factory
operatives were treated did not specifi-
cally refer to the
Plaintiff's factory. It appears, however, in that
case that
there were circumstances, such as the location of the
factory,
which enabled the jurors to identify the Plaintiff's factory
as
the factory pointed at, and the Lord Chancellor observed at
p. 664
that " if a party can publish a libel so framed as to describe
"
individuals, though not naming them, and not specifically de-
"
scribing them by any express form of words, but still so describ-
"
ing them that it is known who they are, as the jurors have found
"
it to be here, and if those who must be acquainted with the
"
circumstances connected with the party described may also come
"
to the same conclusion, and may have no doubt that the writer
"
of the libel intended to mean those individuals, it would be
"
opening a very wide door to defamation, if parties suffering all
"
the inconvenience of being libelled were not permitted to have
"
that protection which the law affords."
It
will be observed that Le Fanu v. Malcolmson was a case
where
there were facts pointing to the particular factory which
was meant
to be referred to though the article spoke in more
general terms of
a factory in Waterford. In the present case the
statement com-
plained of is not made concerning a particular
individual, whether
named or unnamed, but concerning a group of
people spread over
several countries and including considerable
numbers. No facts
were proved in evidence which could identify the
plaintiff as the
person individually referred to. Witnesses called
for the Appellant
[3] 3
were asked the carefully framed
question, "To whom did your
" mind go when you read that
article ? ", and they not unnaturally
replied by pointing to
the Appellant himself. But that is because
they happened to know
the Appellant as the leading member of
the Society in this
country, and not because there is anything in
the article itself
which ought to suggest even to his friends that he
is referred to
as an individual.
There are two questions involved
in the attempt to identify the
Appellant as the person
defamed. The first question is a question of
law—can the
article, having regard to its language, be regarded as
capable of
referring to the Appellant ? The second question is a
question of
fact, namely, does the article in fact lead reasonable
people, who
know the Appellant, to the conclusion that it does refer
to him ?
Unless the first question can be answered in favour of the
Appellant,
the second question does not arise, and where the Trial
Judge went
wrong was in treating evidence to support the identifica-
tion in
fact as governing the matter, when the first question is
neces-
sarily, as a matter of law, to be answered in the negative.
I move that this appeal
be dismissed.
Lord
Chancellor
Lord
Atkin
Lord
Thanker-
ton
Lord
Russell of
Killowen
Lord
Porter
[4]
KNUPFFER (PAUPER)
v.
LONDON
EXPRESS NEWSPAPER, LIMITED
Lord Atkin (READ
BY LORD THANKERTON)
MY LORDS,
I have read the opinion about to be delivered by my
noble
friend Lord Porter, and agree with it and with the proposed
motion
that the appeal be dismissed. I add a few words, however,
for 1
wish to emphasize the point that the judgments in the Court
of
Appeal appear to over-elaborate the law of libel as
applicable
to this case. I venture to think that it is a mistake
to lay down a
rule as to libel on a class, and then qualify it
with exceptions. The
only relevant rule is that in order to be
actionable the defamatory
words must be understood to be published
of and concerning the
Plaintiff. It is irrelevant that the words
are published of two or
more persons if they are proved to be
published of him: and it
is irrelevant that the two or more
persons are called by some
generic or class name. There can be no
law that a defamatory
statement made of a firm, or trustees, or
the tenants of a particular
building is not actionable, if the
words would reasonably be under-
stood as published of each member
of the firm or each trustee or
each tenant. The reason why a libel
published of a large or in-
determinate number of persons
described by some general name
generally fails to be actionable is
the difficulty of establishing that
the Plaintiff was in fact
included in the defamatory statement: for
the habit of making
unfounded generalisations is ingrained in ill-
educated or vulgar
minds: or the words are occasionally intended
to be a facetious
exaggeration. Even in such cases words may be
used which enable
the Plaintiff to prove that the words complained
of were intended
to be published of each member of the group,
or at any rate of
himself. Too much attention has been paid, I
venture to think, in
the textbooks and elsewhere to the decision of
Willes J. in 1858
in Eastwood v. Holmes, 1 F. & F. 347.
It is a
nisi prius decision in which the judge non-suited
the Plaintiff both
because he thought there was no evidence that
the words were
published of the Plaintiff, and for other reasons,
and so far as the
first ground is concerned it appears to me on
the facts to be of
doubtful correctness. His words, " it only
reflects on a class of
" persons " are irrelevant unless
it means it does not reflect on the
Plaintiff: and his instance "
All lawyers are thieves " is an excellent
instance of the
vulgar generalisations to which I referred. It will
be as well for
the future for lawyers to concentrate on the question
whether the
words were published of the Plaintiff rather than on
the question
whether they were spoken of a class. I agree that
in the present
case the words complained of are apparently an
unfounded
generalisation conveying imputations of disgraceful
conduct, but
not such as could reasonably be understood to be
spoken of the
Plaintiff.
It becomes unnecessary to deal with the question of
excessive
damages. I content myself by saying that if the libel
had been
published of the Plaintiff, while the damages awarded are
possibly
too high, I do not find myself in any degree in accord
with the
estimate of the damages suggested by the Court of Appeal.
Lord
Thankerton
My Lords,
I concur in the opinions which
have just been delivered.
Lord
Chancellor
Lord
Atkin
Lord
Thunker-
ton
Lord
Russell of
Killowen
Lord
Porter
[5]
sess. 1944—
[H.L.]
KNUPFFER (PAUPER)
v.
LONDON EXPRESS NEWSPAPER,
LIMITED.
Lord Russell of Killowen
(READ BY LORD THANKERTON)
MY LORDS,
I agree that this appeal fails.
The crucial question in these cases in which an
individual
Plaintiff sues in respect of defamation of a class or
group of in-
dividuals is whether on their true construction the
defamatory
words were published of and concerning the individual
Plaintiff.
Unless this can be answered in the affirmative he has
no cause of
action. It is not, I think, the case of a denned
primary rule, with
defined exceptions to the rule. I would rather
say that in every
case it is the question indicated above.
When the construction of the matter complained of comes
under
consideration, there may be something in the defamatory
matter,
or in the circumstances in which it is published, which
indicates,
and enables a jury to find, that particular individuals
are defamed,
although they are not named. The case of Le Fanu
v. Malcolmson
(1.H.L.C. 637) is an instance of this. Or the
class or group can
be identified, and is such that each member
thereof is necessarily
defamed. The case of Browne v.
Thomson (1912, S.C. 359) is an
instance of this. A body of
trustees or directors would furnish
another instance in which
defamation of the body involves defama-
tion of each member
thereof.
The present case, however, is far removed from these
considera-
tions. The newspaper article makes allegations about a
body of
persons, some thousands in number, established in France
and the
United States of America. It makes no reference of any
kind to
the Plaintiff or even to England. There is nothing in it
which
would enable anyone to identify any person as being a
member
of the body. All that can be said is that a person who read
it and
who knew that the Plaintiff was a member of the body
would
know that he was one of the numerous individuals from
whose
ranks Hitler hoped at some time to nominate a puppet
fuehrer
in Russia. Nothing more than that. That is really all that
I can
attribute as the meaning of the answers given by the
Plaintiff's
friends to the carefully worded and stereotyped
question of the
Plaintiff's Counsel, viz., " To whom did your
mind go when you
"read that article?"
In my opinion it is impossible to construe the article
in any
way which would justify the view that it contained
defamatory
matter published of and concerning the Plaintiff.
Lord
Chancellor
Lord Atkin
Lord
Thankerton
Lord
Russell of
Killowen
Lord
Porter
[6]
KNUPFFER (pauper)
v.
LONDON EXPRESS
NEWSPAPER, LIMITED
Lord Porter
(READ BY LORD MACMILLAN)
MY LORDS,
This case raises once again the question which is
commonly
expressed in the form, " can an individual sue in
respect of words
which are defamatory of a body or class of
persons generally?"
The answer as a rule must be No! But the enquiry is
really a
wider one and is governed by no rule of thumb. The true
question
always is, was the individual or were the individuals
bringing the
action personally pointed to by the words complained
of?
Many of the earlier cases appear to have been concerned
with
words alleged to refer not to a class but to one or more out
of a
larger number of persons without, it was said, sufficiently
indicating
who was aimed at. The authorities quoted in argument in
Le Fanu
v. Malcolmson (1848) 1 H.L.C. 637 were of
this type though in that
case itself the defamatory words
complained of, whilst they
appeared to apply to a class, in
reality were capable of being shown
and were shown to be
applicable to some of the individuals com-
prising that class.
No doubt it is true to say that a class cannot be
defamed as
a class nor can an individual be defamed by a general
reference to
the class to which he belongs. Willis J.'s well known
words in
Eastwood v. Holmes (1858) 1 F. & F. 347
sufficiently illustrate the
point. Nevertheless the words or the
words combined with the sur-
rounding circumstances may be shown
to refer to some person or
persons individually. Le Fanu v.
Malcolmson (supra) has already
been quoted and Foxcroft
v. Lacy (1620) Hobart 89 is an earlier
example to the
same effect. In each case a number of persons were
involved but
they sued, jointly or severally, as individuals because
their
identity was sufficiently ascertained.
The question whether the words refer in fact to the
Plaintiff
or Plaintiffs is a matter for the jury or for a judge
sitting as a judge
of fact, but as a prior question it has always
to be ascertained
whether there is any evidence upon which a
conclusion, that they
do so refer, could reasonably be reached.
In deciding this question the size of the class, the
generality
of the charge and the extravagance of the accusation
may all be
elements to be taken into consideration. But none of
them is con-
clusive. Each case must be considered according to
its own circum-
stances. I can imagine it being said that each
member of a body,
however large, was defamed where the libel
consisted in the asser-
tion that none of the members of a
community was elected as a
member unless he had committed a
murder.
Whatever the Tribunal the first question is, are the
words in con-
junction with the relevant circumstances reasonably
capable of
being understood to apply to the Plaintiff.
In the present case that question must, I think, be
answered in
the negative.
It is true that the Plaintiff Appellant was and is a
member of
a body upon which very grave reflections have been cast,
that
he is the representative of that body in England, and that
there
are only 24 members of it in this country. But the
newspaper
[7] 2
article makes no reference to England; it confines
itself to allega-
tions about " a minute body "
established in France and the United
States. Minute no doubt its
membership of 2,000 is when compared
with the vast population of
Russia, but in itself it forms a consider-
able body. Out of that
body there was nothing to point to the
Plaintiff, nor indeed to
any individual in this country.
Nor do I think the Plaintiff's case is improved by the
allegations
of his friends that " their minds turned to "
him when they read the
article. Apart from the vagueness of the
question, I can see no
justification for an inference that he was
the person aimed at. If
it could be said, as it is conceded it
could not, that each member
of the body, wherever resident, could
claim to be defamed, some
case might be made on behalf of the
Plaintiff as one of its members,
but as the evidence stands I see
nothing to point to him in contra-
distinction to the rest.
Indeed, inasmuch as he is a member of
the English group he is the
less likely to be referred to.
I agree that the appeal should
be dismissed.
(34590) Wt.
8284—16 25 4/44 DL G.388
