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Andrew Caldecott QC
Call: 1975 Silk: 1994

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Thornton v Telegraph Media Group [2011] EWHC 159 (QB)

Case date: 04/02/2011

Court: High Court

Area/s of law: Malicious falsehood

Falsity and comment

On 1 November 2008 the Telegraph published a review of a book by the Claimant. She commenced proceedings in defamation and malicious falsehood in respect of part of that review, including the words “[Dr. Thornton] also claims that she practices ‘reflexive ethnography’ which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this ‘copy approval’ and disapprove …”

In an earlier decision, Tugendhat J had granted the Defendant summary judgment in respect of the above words on the grounds that they were not defamatory ([2010] EWHC 1414 (QB)), as a result the defence of honest comment which the Defendant had advanced to those words had fallen away.

The Defendant applied to amend its defence to the malicious falsehood claim to rely upon the plea that the above words were comment which an honest person could have expressed and, therefore, could not be regarded as false. The draft plea then set out facts upon which the comment was based. The draft amendment sought to re-introduce much of the honest comment plea originally advanced in relation to the (now deleted) defamation claim referred to above (para 17).

The issue to be determined was whether, if the words complained of are comment, they cannot, as a matter of law, be false (para 20).

Tugendhat J rejected the Defendant’s application and held that comment was not relevant to malicious falsehood claims: 

  • The first element of the cause of action for malicious falsehood is the question whether the words complained of were false (Duncan & Neill 3rd ed at 26.01, cited at para 14). It is also the only question; whether or not the statement is comment or an inference is irrelevant (paras 21 & 25)

  • It would be contrary to principle to import the defence of honest comment from the law of defamation to malicious falsehood actions. In defamation, even if the defendant proves that the publication is comment and is one which an honest person could reach on the facts proved true, the defence can still be defeated if the claimant proves malice (i.e. that the defendant did not honestly believe what he had published). However, if the honest comment defence were imported into the first element of cause of action for malicious falsehood, then even if a claimant could prove malice (the second element of the cause of action), the claim could fail because he could not prove falsity when the publication was capable of being comment which an honest person could hold (para 32).

  • Tugendhat J also rejected the Defendant’s submission that the above difference between defamation and malicious falsehood was supported by/consistent with the roles played by Articles 8 and 10 in such claims. This was not least because there is no public interest in publishers asserting opinions which they do not believe to be true (para 34).

  • Furthermore, there was no authority to support introducing, into the question of falsity, a test of whether or not the words were comment. The Judge rejected the Defendant’s submission that dicta of Eady J in Quinton v Pierce [2009] FSR 17 did provide such authority. Furthermore, Tugendhat J observed that Eady J’s decision was incapable of doing so; Eady J had held that the words complained of in that case were not false. Tugendhat J observed that, logically, for the Defendant to be able to rely on Quinton v Pierce it would have been necessary for Eady J to have found the words were false and then to have continued on to consider whether the defendant could prove true the facts relied upon to support the purported ‘comment’.

Kate Wilson

A previous case note on an earlier decision in these proceedings can be found here.

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