An attempt by the Daily Telegraph to use the fair comment defence in a libel case over a book review has been struck out by a judge on the grounds that the article included a “clear and material” factual mis-statement.
The Telegraph is being sued by Dr Sarah Thornton over a review by journalist Lynn Barber of her book, Seven Days in the Art World, which appeared in the paper’s Saturday edition on 1 November last year.
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Dr Thornton sued for libel and malicious falsehood over parts of two paragraphs, claiming that they meant first, that she dishonestly claimed to have carried out an hour-long interview with Lynn Barber as part of her research for the book, when the true position was that she had not interviewed Ms Barber at all, and had in fact been refused an interview; second that she gave her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice known in the world of journalism as “copy approval”, and finally that she had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.
She applied to have the newspaper’s fair comment defence struck out on the grounds that the review contained statements of fact rather than comment, and that it contained factual mis-statements.
Sir Charles Gray said the newspaper had admitted the first defamatory meaning claimed, and had made a qualified offer of amends, which Dr Thornton had not accepted.
The defence of fair comment on a matter of public interest had “not had an altogether easy ride over the years”, he said.
“In my judgment a reader might understand from those words, without being guilty of perversity, that Ms Barber is giving her subjective interpretation of what she understands in practice takes place between Dr Thornton and her interviewees.”
He added: “I have in the circumstances come to the conclusion that it would be wrong to conclude that there is no realistic prospect of the
defendant being able to establish that the words in question represent Ms Barber’s comment on the methodology of Dr Thornton.
“To put it another way, I cannot say that a finding by the jury that the words constitute comment would be perverse. Accordingly I answer the first question in favour of the defendant.”
But on the second question, he held that there was a mis-statement of fact in the review.
“In appropriate circumstances the publisher of a review of a literary work or dramatic or artistic work will be held to have complied with the
requirement that words should indicate, at least in general terms, the factual basis for the comment if the reviewer identifies for the benefit
of his or her readers the book or play or film or picture as the case may be,” the judge said.
But although Ms Barber had identified the book as the subject of the review, she had not given enough information about the basis of her
criticism of Dr Thornton’s methodology.
There was no way by which readers of the review who read the book could tell whether Ms Barber had materially mis-stated the facts when she said in the review that interviewees had the right to read what Dr Thornton had written and to alter it.
“It appears to me that, in order for the defence of fair comment to stand, it was incumbent on Ms Barber to indicate in her review for the
benefit of readers, at least in general terms, how Dr Thornton claimed to deal with interview material incorporated in the book and why Ms
Barber was sceptical about her claim,” Sir Charles said.
“Having done so, Ms Barber would be free to comment on the validity of Dr Thornton’s practice. It appears to me that the review, as it stands, significantly misdescribes what Dr Thornton says in her book about the way she deals with interviewees.”
“…In my judgment the passage from the Telegraph review selected for complaint by Dr Thornton does contain a clear and material
mis-statement by Ms Barber. A finding to the contrary by a jury would in my view be perverse.
“For that reason I see no real prospect of the defence of fair comment succeeding. It must follow that the defence of fair comment be struck out.”