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Defamation: A game of two halves

22 August 2016 by Paul Harris

Defamation: A game of two halves - read more

Different judges can form separate verdicts from essentially the same evidence

For celebrities such as footballers, the risk of appearing in the popular press is an ever-present one. Moreover, given the amount of money football players in the Premier League earn, they also have the ability to pay lawyers vast sums, either to keep their names out of the press or, as in the case of Danny Simpson, prove that the tabloid news editors are nasty and horrible and he is not the person they portrayed him to be.

What is interesting about the two cases Mr Simpson has been involved in, is the way the judges have viewed what the newspapers said and the impact on the injured party.

Extensive stories

When Mr Simpson played for Newcastle United, he had a long-term girlfriend with whom he already had a child. By all accounts the relationship went up and down throughout its duration. A key factor was that his girlfriend had qualified as a lawyer and given up her legal career in order to live with Mr Simpson and have children.

It was following a break in the relationship in April 2012 that Mr Simpson’s girlfriend moved to Manchester to a house he owned there, while he continued to live in Newcastle. The girlfriend, however, was loyal and they conceived a second child despite separation. However, their relationship did not resume fully until July 2013 and she eventually moved back in with Mr Simpson in January 2014. It was, however, during the break between November 2012 and May 2013 that Mr Simpson had a relationship with former X-Factor judge, Tulisa Contostavlos.

It was not long after the start of that relationship that The Sun and The Mirror ran stories exposing the affair. Headlines such as ‘mum-to-be raps “home-wrecker” Tulisa’ and ‘Tulisa’s stolen my bloke… and I’m three months pregnant’, and ‘She’s Tu Cruel’ were splashed across the newspapers.

In the first action, Ms Contostavlos and Mr Simpson joined forces against The Sun, and in the second case, Mr Simpson alone brought proceedings against The Mirror which, in turn, joined Mr Simpson’s girlfriend as a defendant. Rightly, she played no part in the proceedings, retaining her dignity and protecting her children.

Sting of the article

The alleged defamatory words have to be given a meaning, which is referred to as the ‘sting of the article’. In the first case, the Judge concluded that insofar as Mr Simpson was concerned, the words would be taken to mean that by entering into a romantic relationship with Ms Contostavlos, he was unfaithful to his partner. His partner with whom he was in a stable, long-term and committed relationship, living with her and their daughter as a family, and who, as he knew, was pregnant with their next child. It could be concluded that he had engaged in conduct likely to cause the breakdown of his relationship with his girlfriend and daughter.

However, in the second case, the Judge − being obliged to ignore the first case and simply look at the words in The Mirror − concluded that the defamatory meaning was that by entering a romantic relationship with Ms Contostavlos, Mr Simpson was unfaithful to his loyal partner: with whom he was in a long-term and committed relationship and living with their daughter as a family. He did so despite his girlfriend having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child. The Judge also concluded the meaning to be that by doing so, he callously destroyed his relationship with his girlfriend and broke up an established family unit which was soon to be joined by the child they were expecting.

In both cases, a preliminary issue was sought as to the true meaning of the words. Once that has been decided, most cases generally disappear; with the newspapers sensibly settling. That appears to be what happened in the first case, as the Judge concluding that the words were defamatory and clearly the implication being that they were not justified.

The Sun’s lawyers argued that the meaning of the words should not include that Mr Simpson’s conduct should be regarded as being made worse by reason of him having a young daughter and an unborn child, but the Judge dismissed that. Similarly, the Judge in the second case found the meaning equally defamatory, but phrased in a way that differed significantly to that of the earlier Judge against The Sun. Accordingly, The Mirror appealed.

Court of Appeal

The Court of Appeal looked at the approach taken to understand the meaning of the words, which is:

  1. The governing principle is reasonableness.
  2. The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in 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 when other non-defamatory meanings are available.
  3. Over-elaborate analysis is best avoided.
  4. The intention of the publisher is irrelevant.
  5. The article must be read as a whole, and any ‘bane and antidote’ taken together.
  6. They hypothetical reader is taken to be representative of those who would read the publication in question.
  7. It follows that it is not enough to say that to some person or another the words might be understood in a defamatory sense.

In The Mirror’s case, the Judge had highlighted certain words in his judgment, which indicated to him that some factors were of greater importance than others in reaching the ‘defamatory sting’.
In particular, the issues concerning family and the giving up of a legal career were considered important. In fact, the Court of Appeal considered that the judge had attributed to those words too much importance. They therefore reversed the decision to have The Mirror’s defence of justification struck out.

Excuse to keep printing

As a neutral observer, it is difficult to understand the emotions and thoughts on either side in situations like this. The action brought is hardly going to clear either Mr Simpson or Ms Contostavlos’ names in terms of what they did together or how people would view them, whether with or without the implications made by the newspapers.

Bringing and continuing such cases gives the newspapers an additional excuse to print the facts (perhaps cleaned up, this time around) when the decision is published and/or, as in the case of The Mirror, they are successful on appeal. I have no doubt the newspapers feel justified in using the words that they have, however, to them it is always a calculated risk whether the journalist goes too far or not. Either way, scandal sells newspapers.

Paul Harris is a Partner at Venner Shipley Legal Limited

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