Charleston v News Group Newspapers Ltd [1995] UKHL 6

House of Lords
Between
CharlestonAppellantNews Group Newspapers LtdRespondent
Before
Lord Goff of ChieveleyDate 30 March 1995
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 17th day of December 1993 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered. That the Appellants do pay or cause to be paid to the said Respondents the Costs incurred by them in respect of the said Appeal to this House, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.Cler: Parliamentor:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

CHARLESTON AND ANOTHER (APPELLANTS)

v.

NEWS GROUP NEWSPAPERS LIMITED AND ANOTHER

(RESPONDENTS)

ON 30TH MARCH 1995

Lord Goff of Chieveley Lord Bridge of Harwich Lord Jauncey of Tullichettle Lord Mustill Lord Nicholls of Birkenhead

LORD GOFF OF CHIEVELEY

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. For the reasons he gives I too would dismiss the appeal.

LORD BRIDGE OF HARWICH

My Lords,The appellants are the plaintiffs in an action claiming damages for libel against the publishers and editor of the News of the World in respect of an article which appeared in that newspaper on 15 March 1992. A preliminary issue was ordered to be tried as to whether the article in question was capable of bearing any of the defamatory meanings pleaded in the plaintiffs' statement of claim. On 22 January 1993 Blofeld J. determined the preliminary issue in favour of the defendants and consequently dismissed the action. On 17 December 1993 the plaintiffs' appeal from that decision was unaminously dismissed by the Court of Appeal (Butler-Sloss, Farquharson and Nolan L.JJ.) (unreported) Court of Appeal (Civil Division) Transcript No. 1549 of 1993. The plaintiffs now appeal by leave of your Lordships' House.The plaintiffs are an actor and actress who played the parts of Harold and Madge Bishop, a respectable married couple, in the popular Australian television serial "Neighbours" and were thus well known to an English audience of millions. The article complained of appears with a headline across most of the page in capital letters three quarters of an inch high which

- 1 -

reads:
"STREWTH! WHAT'S HAROLD UP TO WITH OUR MADGE?"
Immediately beneath this is a large photograph of a man and a woman nearly naked. The woman is leaning forward over some piece of furniture and the man is standing behind her apparently engaging in an act of intercourse or sodomy with her. Superimposed over the lower part of their bodies is an outline map of Australia bearing the words "CENSORED DOWN UNDER." To the right of this is another smaller photograph of a woman wearing a tight- fitting blouse or jacket with holes cut to expose her bare breasts. The face of the man in the large photograph is the male plaintiff's and the face of the woman in both photographs is the female plaintiff's. Below the photographs is another smaller, but still prominent, headline which reads:
"Porn Shocker for Neighbours stars"
. The captions under the photographs are in small print and read respectively:
"SOAP STUDS: Harold and Madge's faces are added to porn actors' bodies in a scene from the game." and "
RAMSAY RAVE: 'Madge' in kinky leather gear." Ramsay Street is where the action of "Neighbours" is set.The text of the article which follows makes it clear that the photographs have been produced by the makers of a pornographic computer game by superimposing the faces of the plaintiffs without their knowledge or consent on the bodies of others. The opening paragraphs of the article read:
"What would the Neighbours say . . . straight laced Harold Bishop starring in a bondage session with screen wife Madge.
"The famous faces from the TV soap are the unwitting stars of a sordid computer game that is available to their child fans. . . .
"The game superimposes stars' heads on near-naked bodies of real porn models. The stars knew nothing about it."
Beside this text are inset two small photographs of the plaintiffs with the caption:
"VICTIMS: Ian and Anne."
The remainder of the article castigates the makers of the "sordid computer game" in a tone of self righteous indignation which contrasts oddly with the prominence given to the main photograph.The plaintiffs must have found this publication deeply offensive and insulting. Many people will not only deplore this kind of gutter journalism but will think that the law ought to give some redress to the plaintiffs against the publication of such degrading faked photographs irrespective of what the accompanying text may have said. I have considerable sympathy with this point of view.However, your Lordships are not concerned to pronounce on any question of journalistic ethics nor to consider whether the publication of the photographs by itself constituted some novel tort. The single question of law to which the appeal gives rise is whether the plaintiffs have any remedy in the

- 2 -

tort of defamation on the basis of their pleaded claim, and this in turn narrows down to the question whether a claim in defamation in respect of a publication which, it is conceded, is not defamatory if considered as a whole, may nevertheless succeed on the ground that some readers will have read part only of the published matter and that this part, considered in isolation, is capable of bearing a defamatory meaning.The plaintiffs' statement of claim alleges that the publication conveyed to the reader a number of defamatory meanings. The basis on which all these alleged meanings rest is that the reader would have drawn the inference that the plaintiffs had been willing participants in the production of the photographs, either by posing for them personally or by agreeing that their faces should be superimposed on the bodies of others. But it is conceded on the plaintiffs' behalf, and is indeed obvious, that no reader could possibly have drawn any such inference if he had read beyond the first paragraph of the text. Thus the essential basis on which Mr. Craig's argument in support of the appeal rests is that, in appropriate circumstances, it is possible and legitimate to identify a particular group of readers who read only part of a publication which conveys to them a meaning injurious to the reputation of a plaintiff and that in principle the plaintiff should be entitled to damages for the consequent injury he suffers in the estimation of this group.It is well settled, as Mr. Craig accepts, that, save in the case of a legal innuendo dependent on extrinsic facts known to certain readers, no evidence is admissible as to the sense in which readers understood an allegedly defamatory publication. No legal innuendo is here alleged. But here, so Mr. Craig's argument runs, it goes without saying and no evidence is required to establish that, out of the many millions constituting the readership of a mass circulation newspaper like the News of the World, a significant proportion, when they saw the page of which the plaintiffs complain, would have done no more than to have read the headlines and looked at the photographs. It will be convenient to refer to this group as the "limited readers". The argument before your Lordships was substantially confined to the effect of the publication on the minds of the limited readers. They would, Mr. Craig submits, have drawn an inference defamatory of the plaintiffs as actors willing to participate in pornographic films and it should be left to a jury to estimate the size of the group constituted by the limited readers and to award damages accordingly for the injury which the plaintiffs' reputation must have suffered in the estimation of this group.The first formidable obstacle which Mr. Craig's argument encounters is a long and unbroken line of authority the effect of which is accurately summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p. 13, para. 4.11 as follows:
"In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication.

- 3 -

Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage."The locus classicus is a passage from the judgment of Alderson B. in Chalmers v. Payne (1835) 2 C.M.& R.156, 159, who said:
"But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together."
This passage has been so often quoted that it has become almost conventional jargon among libel lawyers to speak of the bane and the antidote. It is often a debatable question which the jury must resolve whether the antidote is effective to neutralise the bane and in determining this question the jury may certainly consider the mode of publication and the relative prominence given to different parts of it. I can well envisage also that questions might arise in some circumstances as to whether different items of published material relating to the same subject matter were sufficiently closely connected as to be regarded as a single publication. But no such questions arise in the instant case. There is no dispute that the headlines, photographs and article relating to these plaintiffs constituted a single publication nor that the antidote in the article was sufficient to neutralise any bane in the headlines and photographs. Thus it is essential to the success of Mr. Craig's argument that he establish the legitimacy in the law of libel of severance to permit a plaintiff to rely on a defamatory meaning conveyed only to the category of limited readers.Your Lordships were very properly referred to the many authorities in which the principle of Chalmers v. Payne has been affirmed and applied. But it is unnecessary to go through them, since Mr. Craig accepts that these authorities, so far as they go, are unanimously against his proposition and that he is unable to rely on any other authority in support of the principle of severance which he now advances.The theme of Mr. Craig's argument runs on the following lines. All the earlier authorities, he submits, are explicable on the basis that the allegedly defamatory matter with which they were concerned was located somewhere in a document in which there was no likelihood that it would be read in isolation. In such a situation it is natural and proper to look for the meaning conveyed to the reader by considering the publication as a whole. The techniques of modern tabloid journalism, however, confront the courts with a novel situation with which the law has not hitherto had to grapple. It is plain that the eye-catching headline and the eye-catching photograph will first attract the reader's attention, precisely as they were intended to do, and equally plain that a significant number of readers will not trouble to read any

- 4 -

further. This phenomenon must be well known to newspaper editors and publishers, who cannot, therefore, complain if they are held liable in damages for any libel thus published to the category of limited readers.At first blush this argument has considerable attractions, but I believe that it falls foul of two principles which are basic to the law of libel. The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the "natural and ordinary meaning" to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base their verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it. The origins and the implications of this second principle are the subject of a characteristically penetrating analysis in the judgment of Diplock L.J. in Slim v. Daily Telegraph Ltd [1968] 2 Q.B.157, at pp. 171-174, from which it will, I think, be sufficient to cite the following passages:
"Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be 'right' conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the 'right' meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it. ...
"Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others

- 5 -

of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel. . . .
"Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the 'right' meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right,' survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel."
It is precisely the application of the principle so clearly expounded in these passages which, in a libel action where no legal innuendo is alleged, prevents either side from calling witnesses to say what they understood the allegedly defamatory publication to mean. But it would surely be even more destructive of the principle that a publication has "the one and only meaning which the readers as reasonable men should have collectively understood the words to bear" to allow the plaintiff, without evidence, to invite the jury to infer that different groups of readers read different parts of the entire publication and for that reason understood it to mean different things, some defamatory, some not.Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented. But the proposition that the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines, is to my mind quite unacceptable in the light of the principles discussed above.I have no doubt that Mr. Craig is right in his assertion that many News of the World readers who saw the offending publication would have looked at the headlines and photographs and nothing more. But if these readers, without taking the trouble to discover what the article was all about, carried away the impression that two well known actors in legitimate television were also involved in making pornographic films, they could hardly be described as ordinary, reasonable, fair-minded readers.I would dismiss the appeal.

- 6 -

LORD JAUNCEY OF TULLICHETTLE

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. For the reasons he gives I too would dismiss the appeal.

LORD MUSTILL

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. For the reasons he gives I too would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,Newspapers get thicker and thicker. The News of the World published on 15 March 1992 contained 64 pages. Everybody reads selectively, scanning the headlines and turning the pages. One reader, whose interest has been quickened by an eye-catching headline or picture, will pause and read an article. Another reader, with different interests or less tune, will read the headline and pass on, leaving the article unread. What if a headline, taken alone or with an attached picture, is defamatory, but the text of the article removes the defamatory imputation? That is the question of law raised by this appeal.At first sight one would expect the law to recognise that some newspaper readers will have seen only the banner headline and glanced at the picture. They will not have read the text of the accompanying article. In the minds of these readers, the reputation of the person who is the subject of the defamatory headline and picture will have suffered. He has been defamed to these readers. The newspaper could have no cause for complaint if it were held liable accordingly. It has chosen, for its own purposes, to produce a headline which is defamatory. It cannot be heard to say that the article must be read as a whole when it knows that not all readers will read the whole article.To anyone unversed in the law of defamation that, I venture to think, would appear to be the common sense of the matter. Long ago, however, the law of defamation headed firmly in a different direction. The law adopts a

- 7 -

single standard for determining whether a newspaper article is defamatory: the ordinary reader of that newspaper. I leave aside cases where some readers may have special knowledge of facts which would cause them to give the words a different meaning.In principle this is a crude yardstick, because readers of mass circulation newspapers vary enormously in the way they read articles and the way they interpret what they read. It is, indeed, in this very consideration that the law finds justification for its single standard. The consequence is that, in the case of some publications, there may be many readers who understand in a defamatory sense words which, by the single standard of the ordinary reader, were not defamatory. In respect of those readers a plaintiff has no remedy. The converse is equally true. So a newspaper may find itself paying damages for libel assessed by reference to a readership many of whose members did not read the words in a defamatory sense.I do not see how, consistently with this single standard, it is possible to carve the readership of one article into different groups: those who will have read only the headlines, and those who will have read further. The question, defamatory or no, must always be answered by reference to the response of the ordinary reader to the publication.This is not to say that words in the text of an article will always be efficacious to cure a defamatory headline. It all depends on the context, one element in which is the lay-out of the article. Those who print defamatory headlines are playing with fire. The ordinary reader might not be expected to notice curative words tucked away further down in the article. The more so, if the words are on a continuation page to which a reader is directed. The standard of the ordinary reader gives a jury adequate scope to return a verdict meeting the justice of the case.The present case is well on the other side of the borderline. The ordinary reader could not have failed to read the captions accompanying the pictures. These made clear that the plaintiffs' faces had been superimposed on other actors' bodies. The plaintiffs had not themselves been indulging in the activities shown in the pictures. The ordinary reader would see at once that the headlines and pictures could not be taken at their face value. And the reader's eye needed to travel no further than the "victims" caption to the smaller photographs, and to the second sentence, at the top of the article, to find confirmation that the plaintiffs were "unwitting" stars in the sordid computer game.Accordingly, when the ordinary reader put down the News of the World on 15 March 1992, he or she would have thought none the worse of the two actors who are well-known for their roles in the "Neighbours"

- 8 -

television serial. The ordinary reader might have thought worse of the producers of the pornographic computer game, and of the News of the World, but that is a different matter. In agreement with my noble and learned friend, Lord Bridge of Harwich, I too would dismiss this appeal.

- 9 -