Global menu

Our global pages

Close

An allegation of sexting at work - defamatory?

  • United Kingdom
  • Technology, Media and Telecoms

04-06-2019

This article first appeared in the Entertainment Law Review, Issue 4, 2019 and is republished with kind permission.

In a short judgment on two preliminary issues and a summary judgment application, Nicklin J has dismissed a claim that the MailOnline and The Sun published defamatory statements about the claimant, preferring the defendants’ case on meaning and finding that the defamatory imputations were opinion rather than fact.1

Background

The claimant was the subject of news articles published on the MailOnline website andin The Sun newspaper under various headlines, including “Council boss in charge of protecting vulnerable children at Baby P authority ‘sends sexual pics fromoffice toilets to man she met on Plenty of Fish’.”

The claimant issued claims against the publishers, Associated Newspapers and News Group Newspapers, for libel, misuse of private information and alleged breaches of the Data Protection Act 1998. The defendants applied for a preliminary ruling on (a) meaning for the purposes of the libel claim and (b) whether the words were statements of “fact” or “opinion”. At the same time, the defendants applied for summary judgment on the libel claim, on the ground that the claimant’s case had no reasonable prospect of success.

Nicklin J heard the preliminary issues and summary judgment applications on the same date.

Preliminary issues

The crux of the dispute was whether the articles contained defamatory allegations of fact linking the claimant with two notorious child-safeguarding cases.

The claimant relied on the respective headlines to the articles; the juxtaposition in all the articles of photographs of the claimant and the photograph of Baby P and the intermingling of the story of the failures by social workers in the Council that led to the deaths, with the story  oncerning the claimant’s sending of sexual messages.

The defendants argued that the ordinary reasonable reader would appreciate that there were two strands of the story: (a) the particular incident concerning the claimant; and (b) the historic controversy concerning the Council’s handling of the Baby P and Victoria Climbie cases. The article as a whole made plain that it was the Council’s historic failures that were being referred to in (b)—those failings were not in any way attributed to the claimant.

As for the statements that the claimant had sent sexual messages/images to a person she met on a dating website, the defendants argued this was not of itself defamatory. Any defamatory aspects were expressions of opinion, largely supplied by the comments of MPs and/or  the recipient of the messages.

Decision

Nicklin J rehearsed the legal principles for determining the meaning of words in libel. Although somewhat artificial, the court’s task was to determine a single natural and ordinary meaning that the hypothetical reasonable reader would understand the words to mean.

The applicable principles are set out in Jeynes v News Magazines Ltd2: 

  • The governing principle is reasonableness.
  • The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read an implication more readily than a lawyer and may indulge in a certain  amount  of loose thinking but he must be treated as being a man who is not avid for scandal and someone  who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
  • Over-elaborate analysis is best avoided.
  • The intention of the publisher is irrelevant.
  • The article must be read as a whole, and any “bane and antidote” taken together.
  • The hypothetical reader in question is taken to be representative of those who would read the publication in question. 
  • In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the product of some strained, or forced or utterly unreasonable interpretation”.
  • It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense”.

As to the approach to determine the issue of fact or opinion, the applicable principles were summarised in Morgan v Associated Newspapers Ltd3 and Sube v News Group  Newspapers.4Sube itself refers to Yeo v Times Newspapers Ltd5:

“The statement must be recognisable as comment, as distinct from an imputation of fact: Gatley on Libel and Slander, para.12.7.  Comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc’: Branson v Bower [2001] E.M.L.R.

800 at [12]. The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams  Press Ltd [1958] 2 W.B. 275 at 313. The subject matter and context of the words may be an important indicator of whether they are fact or comment: see Singh’s case at [26] and [31].”

Nicklin J noted that case law made clear that the notional ordinary reasonable reader was taken to have read all of the article (not just the headlines). Such a reader could not conclude that the claimant was in any way connected  with the Baby P and Victoria Climbie cases (which were over 11 and 18 years ago), other than the fact that she worked for the Council. The fact that the claimant worked for the same Council did not contribute any element of the defamatory sting to the meaning of the articles about her.

The single meaning of the articles was (with some variations for each article): the claimant, who held a senior  post  in Haringey Council, whilst at work, had sent several sexual messages and images of herself to a man she had met on a dating website; and the sending of these messages and images, whilst she was at work, was inappropriate and unprofessional behaviour for someone in the claimant’s position.

The meaning in the first bullet that the claimant had, whilst at work, sent several sexual messages and images she had taken of herself to a man she met on the internet, was factual but not defamatory. This conduct was not stated to be a breach of the Council’s rules.

Therefore, the expression of condemnation in bullet two that such behaviour was inappropriate and unprofessional was a value judgment, an opinion on that conduct, and would readily have been recognised as such.

Summary judgment

The defendants contended that they should be granted summary judgment on the basis that there was no reasonable prospect that a defence of honest  opinion (under the Defamation Act 2013 s.3) would fail.

As the name suggests, the defence of honest opinion is available to statements of opinion (as opposed to fact); where  the basis for that opinion is indicated; it is an opinion which an honest person could hold on the basis of facts existing at the time of publication; and it was in fact held by the defendant (or author where the publisher is defendant).

The effect of Nicklin J’s  ruling that the articles complained of conveyed only defamatory expressions of opinion meant the first condition of the defence was satisfied (opinion as opposed to fact). It was not in dispute that the basis of the opinion was indicated (i.e. the facts on which the opinion was based) and those facts had been admitted by the claimant (she did send sexual messages and images to a man she met on the internet). Nor did the claimant contest that the opinions were honestly held (either by the publisher or the third parties who contributed the opinions).

Decision

Accordingly, Nicklin J  concluded that the claimant had no real prospect of defeating an honest opinion defence. Both defendants were entitled to summary judgment on the claimant’s defamation claims against them.

The claims in misuse of private information and/or data protection were not attacked and those actions therefore continued.

Comment

Defamatory  headlines are a bone of contention for claimants and  clearly the headlines in this case had potency. The case law to which Nicklin J referred dates back to a 1995 case concerning the actors Ian Smith and Anne Charleston. Fans of the Australian soap Neighbours will know them as long-standing cast members “Harold and  Madge”. The  News of  the  World ran an article featuring a photograph of their heads, pasted onto the bodies of two individuals engaged in sadomasochistic activities, with the byline “Strewth! What’s Harold up to with our Madge?” The actors sued for libel. The court found that, despite the headline and the images, if the reader  read the article as a whole, it was clear that it was about digital manipulation, and no reasonable reader would understand  Harold and  Madge to  actually be involved in sadomasochistic activities. Therein lies the origin of Jeynes’ principle number  5, that  readers are taken to have read the articles as a whole.

The trouble, of course, is that headlines and bylines are  usually the  first  thing you read before deciding whether  to read on—and they may be the only thing you read. You may give a sideways glance at a fellow train passenger’s newspaper or  pass a newsstand and catch the headlines only. If  you don’t have the opportunity to read “the article as a whole”, you may be left with completely the wrong idea about a story. Yet the law assumes you do read the article as a whole. Nicklin J acknowledged that the exercise is a bit artificial and it is understandable that claimants may feel aggrieved in cases such as these.

The finding that an allegation of sexting at work is not defamatory may seem surprising. In this instance it was true, and accepted to be such, but such an allegation may well raise an eyebrow in many households.

It is interesting to see the defendants carve up the claim and make an attack only on the libel front at a first push. It is perhaps surprising that no application for  a stay of the data protection claim was tacked on, under the Data Protection Act 1998 s.32(4).6 Invoking s.32(4) would effectively “park” the DPA claim indefinitely—sending it to the Information Commissioner’s inbox for a determination of whether the claimant’s personal data was being processed “only for the special purpose of journalism” and with a “view to publication of material not previously published”.

The defendants may be awaiting the CJEU’s preliminary ruling, requested  by a deadlocked Court  of Appeal in Stunt,7 on whether the stay provisions in the DPA strike a permissible balance between rights to  freedom of expression by the press and the rights of privacy in the form of data protection rights. In any case, this decision serves to illustrate the strong protections afforded the press in the UK, as regards statements of honest opinion, and the importance of the notional ordinary reasonable reader.


1 Carruthers v Associated Newspapers  Ltd [2019] EWHC 33 (QB).

2 Jeynes v News Magazines Ltd [2008] EWCA Civ 130.

3 Morgan v Associated Newspapers  Ltd [2018] EWHC 1850 (QB) at [13].

4 Sube v News Group Newspapers  [2018] EWHC 1234 (QB) at [32]–[33].

5 Yeo v Times Newspapers  Ltd [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971 at [88]–[98].