If today a celebrity discovers a picture of her face superimposed on a sex model, she may turn in her upset to the laws of privacy and copyright to get the obscene image removed and to receive some form of reparation. Not that long ago two victims of such depravity issued a claim in libel instead. Why did they turn to defamation; how did their case affect the law of defamation; what alternative effect could it have had? These are the sort of interesting questions explored by Landmark Cases in Defamation Law. The book offers thought-provoking and insightful analysis of key cases, which are all too often overlooked in glimpsing lectures on this most unusual of torts. In demonstrating how historic cases can be of enduring importance in twenty-first century defamation, the book should be a welcome addition to the typically narrow bookshelves that accommodate defamation literature.
The 10 cases (seven English, two Australian (albeit one decided by the Privy Council), and a federal case from the US) are discussed chronologically and independently of one another. Although the book's structure is not thematic, the editor, David Rolph, presents the 10 essays as concerning liability (Chapters 3, 5, 8 and 10), defences (Chapters 1, 4 and 9), and remedies (Chapters 2 and 7). Chapter 6 is sui generis: David Partlett explains how New York Times v Sullivan 376 U.S. 254 (1964) set US defamation law on such a different path to its common-law cousins, and considers the constitutional significance of the case.
Barbara McDonald kicks off the liability cases with Chapter 3 on Byrne v Deane [1937] 1 K.B. 818. McDonald demonstrates how an English golf club, where a libellous poem was pinned to a clubhouse wall by an unidentified individual but then knowingly left there by the club secretary, has been significant in setting the liability threshold for online intermediary publishers. Kylie Pappalardo and Nicolas Suzor combine the themes of publication and jurisdiction in Chapter 10 on Dow Jones v Gutnick [2002] H.C.A. 56, which shows how technological change has accommodated a case initially perceived as a global threat to Internet publications.
Eric Barendt's chapter (Chapter 5) on Lewis v Daily Telegraph [1964] A.C. 234 shines a fresh light on this oft cited case for the ascertainment of meaning in libel actions. Barendt argues that Lewis is a landmark, not because it introduced the concept of ordinary and reasonable readers, but because it elaborated and clarified how a hypothetical reader would approach the question of meaning. The case's most significant contribution to the history of defamation, according to Barendt, is perhaps the least appreciated aspect of the case: drawing distinctions between guilt, suspicion, and investigation of alleged wrongdoing (commonly known as Chase levels after the eponymous Court of Appeal decision almost four decades later, Chase v Newsgroup Newspapers Ltd. [2002] EWCA Civ 1772, [2003] E.M.L.R. 11).
Ursula Cheer discusses defamatory meaning in Chapter 8 on Charleston v NGN [1995] 2 A.C. 65. There, the House of Lords held that two soap opera actors could not sue on the headline and photographs alone of an article, which implicated their involvement in a pornographic videogame; any defamatory imputations must be read in the context of the article as a whole. An important lesson in legal history is the significance of counsel's pleadings in legal development. The question of whether the ordinary reasonable reader would think less of victims of deep-fake pornography (as opposed to voluntary participants) was not a live issue before the House of Lords because of the plaintiffs’ concession that the article overall was not defamatory. A decade or so later and the same tabloid exposed another celebrity to public ridicule with the front-page headline “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” (Mosley v NGN [2008] EWHC 1777 (Q.B.), [2008] E.M.L.R. 20). But, by then defamation was no longer in pole position; Mr. Mosley successfully turned to the newly established tort of misuse of private information (Campbell v MGN [2002] EWCA Civ 1373, [2003] Q.B. 658). Although Mosley could be distinguished from Charleston on the ground that the photographs of Max Mosley were genuine, misuse of private information would still have been available even if the ridiculous pictures of him were fake (the question is “whether the information is private not whether it is true or false”: Ash v McKennitt [2006] EWCA Civ 1714, [2008] Q.B. 73, at [86] (Longmore L.J.)). We will never know if the courts had been willing in 1995 to expand defamation to include intimate material which ridiculed a plaintiff without suggesting that the plaintiffs had actually done anything deserving of public condemnation.
The defences discussed in the book are fair comment (now in its new clothes of “honest opinion”: Defamation Act 2013, s. 3) and the Reynolds defence (abolished by the 2013 Act, s. 4(6)). Paul Wragg's chapter (Chapter 1) on Campbell v Spottiswoode (1863) 3 B & S. 769 is the only essay which argues against the status of landmark otherwise usually awarded to its case. Wragg questions the decision's novelty, arguing that an earlier case on fair comment had actually established the requirement for a “substantial factual foundation” when imputing bad motives (p. 24). Jason Bosland's chapter (Chapter 4) examines the liberal and restrictive interpretations of Kemsley v Foot [1952] A.C. 345, the House of Lords case demanding a “sufficient substratum of fact … indicated in the words” for the defence of fair comment to operate (p. 88, citing Lord Porter, ibid., at 356). The eponymous defence in Reynolds v Times Newspapers Ltd. [2001] 2 A.C. 127, and its subsequent judicial treatment, is discussed by Hilary Young in Chapter 9. Young skilfully demonstrates how the Reynolds defence of responsible journalism, since subsumed into section 4 of the 2013 Act (the “public interest” defence), has enhanced the role of fault in defamation. In this regard, a discussion of Economou v De Freitas [2018] EWCA Civ 2591, [2019] E.M.L.R. 7, would have been welcome. In the wake of the 2013 Act, this high-profile case broadened the scope of protection offered by the public interest defence: the standard of care owed by an author is judged subjectively; there is no golden standard of journalism expected of all writers on matters of public interest.
Professor Rolph's chapter (Chapter 2) on Bonnard v Perryman [1891] 2 Ch. 269 is a fantastic piece of comparative scholarship on the courts’ discretion to grant interim injunctions in defamation claims. Rolph asks whether this famous landmark will withstand the influence of privacy injunctions. Mark Lunney's chapter (Chapter 7) on Uren v John Fairfax and Sons [1966] H.C.A. 40 is the other essay on remedies. Lunney explores the various grounds for exemplary damages in libel, while observing the constitutional significance of the Privy Council's pluralism in Uren.
Robert Chambers, in his review of Landmark Cases in Property Law ([2016] 75 C.L.J. 635), analogised the Landmark Cases format to a “top 10” radio chart. As with all such lists, there will be some choices we nod along to, while others may elicit the raise of an eyebrow. A large factor in how we react to the selection is the type of landmark which we are looking for. Some events are landmarks by reference to their social significance, such as repealing the statutory presumption that unchaste women are held in low esteem: the 2013 Act, s. 14 – also a reminder that landmarks are not always cases. Other events might be considered landmarks for their practical impact on litigation. For example, the evidential demands of “serious harm” under the 2013 Act, s. 1, were not fully acknowledged until the Supreme Court decision of Lachaux v Independent Print Ltd. [2019] UKSC 27, [2019] 3 W.L.R. 18: the claim must refer to “actual facts about [a statement's] impact” on the claimant's reputation (at [12]). Lord Sumption rightfully observed in Lachaux that section 1 is not a “[doctrinal] revolution in the law of defamation” (at [17]); the courts had already set much of the hurdle for reputational harm in Jameel (Yousef) [2005] EWCA Civ 75, [2005] Q.B. 946 (damage to reputation must be more than de minimis), and Thornton v Telegraph Media Group Ltd. [2010] EWHC 1414 (Q.B.), [2011] 1 W.L.R. 1985 (damage to reputation must be, or have a tendency to be, substantial). From a doctrinal perspective, the critic is interested in law qua law. This is the perspective assumed by the book; and, like its predecessors, Landmark Cases in Defamation Law adopts an avowedly historical approach to the question of doctrinal landmarks in the field.
A greater discussion of landmarks at doctrinal boundaries might have helped “resolve [some of] the problems of the present and future” in defamation, as envisaged in the book's preface (p. vi). The book had some glimpses of engaging with landmarks at the boundaries of the tort. Cheer's chapter on Charleston noted the space now occupied by misuse of private information and intellectual property rights. In so doing, Cheer hinted (without going so far as to discuss Mosley) that the case had been a landmark at the frontier of defamation, as well as now a landmark for its place in history as the authority requiring an allegation to be contextualised in its original text.
The Court of Appeal's decision in Youssoupoff v MGM (1934) 50 T.L.R. 581 might not be a “top 10” landmark by the historical standards of this book: expanding the scope of defamatory capacity (in as much as “shun and avoid” is a lower threshold than “hatred, contempt or ridicule”) could be seen as a merely incremental development, rather than as a defining shift in the field. However, the significance of Youssoupoff as a landmark should not be underestimated: the decision demonstrates a doctrinal clash between defamation as regulating community norms and defamation as protecting private interests in sociality. Parliament is entitled to legislate on society's moral beliefs, but are the courts well equipped to do so?
Perhaps another missed opportunity was a discussion of the tension between policy and social reality in McDonald's chapter on Byrne v Deane. Although this 1937 case is now a major authority in modern discussion of online publication (i.e. a landmark in the evolution of defamation), it also demonstrates superbly a difficulty which defamation law still has to confront: whether an imputation's defamatory character is to be decided by what reasonable members of society do think, or by what they should think. On this issue, what the courts have said and what they have done are not always one and the same. Until this tension is resolved, we will continue to see even specialist members of the libel bench struggle with difficult questions of social judgment (e.g. Brown v Bower [2017] EWHC 2637 (Q.B.), [2017] 4 W.L.R. 197, at [46]–[48]).
In the book's defence, landmarks are not the same yesterday and today and forever. Byrne v Deane was barely discussed until the Internet age dawned. Charleston reminds us how transient doctrinal boundaries can be within the law of torts. If Counsel's pleadings had only been more ambitious, Charleston might well have been the case that set defamation on a path towards a new life as a dignitary tort, not too dissimilar from the Roman actio iniuriarum. But such a revolution was not to be; the fate of Charleston has been as a less glorious landmark on meaning. The tensions in Youssoupoff and Byrne v Deane are interesting and require reformers’ attention, but whether these cases will endure as landmarks at the boundaries of defamation is less certain.
Whilst a greater engagement with landmarks at doctrinal boundaries could have contributed to the discussion of reform in this field, the book does not claim to have all the answers. Landmark Cases in Defamation Law stays true to the historical approach which it (and its predecessors have) set out to follow. Defamation might be an unusual tort, with its origins in a society markedly foreign to ours, but the tort is not on its way out. Reputations are of enduring importance in today's society. An improved understanding of important cases in defamation's history will go a long way to understanding the tort in its modern form.
