Baturina v Times Newspapers Ltd [2011] 1 WLR 1526

Key point

  • In defamation, where a statement bears defamatory meaning due to an innuendo which the defendant did not and could not reasonably have been expected to appreciate at the time of the statement, the defendant is prima facie liable in the absence of any defence, regardless of whether it is a ‘reference innuendo’ or ‘meaning innuendo’ (see judgment summary at [24] for definitions of these terms)

Facts

  • The defendant published a story in its Sunday Times newspaper, stating that the claimant, who was the wife of the former Mayor of Moscow, bought a large property in London through a front company based in the British Virgin Islands
  • The claimant brought a claim for damages for libel on the basis of an alleged innuendo in that Russian law required officials and their spouses to declare their assets publicly, and readers would infer that the claimant had failed to do so
  • The defendant applied to strike out the claim or for summary judgment on the grounds that it could not reasonably have foreseen why the article would be defamatory on the grounds alleged since it did not and could reasonably have appreciated the innuendo that the defendant had breached Russian law
  • This was rejected by the judge, who permitted the claim but only in respect of certain categories of readers (readers of the newspaper and republications in Russia)
  • The claimant appealed on the basis that the claim should also be allowed to proceed in respect of readers in England and Wales or online readers
  • The defendant cross-appealed on the foreseeability issue – in this case note we are only concerned with this issue
  • The defendant based his foreseeability argument on two reasons:
    1. the existing case law which suggests otherwise, including E Hulton v Jones, Cassidy v Daily Mirror are concerned with ‘reference innuendos’ but this case is concerned with a ‘meaning innuendo’
    2. existing case law is inconsistent with article 10 of the ECHR following the coming into force of the Human Rights Act 1998

Held (Court of Appeal, Civil Division)

  • Appeal allowed, cross-appeal allowed in part but the foreseeability argument was rejected

Lord Neuberger of Abbotsbury MR

Reference and Meaning Innuendos

  • ‘[A] reference innuendo arises where the statement is on its face defamatory, but where knowledge of extrinsic facts is needed to link them to the claimant; whereas a meaning innuendo arises where the statement does not appear to be defamatory on its face, and is only rendered defamatory by knowledge of extrinsic facts.’: [23]
  • ‘The reasoning in the earlier cases appears to me to apply equally to both forms of innuendo.’: [24]
  • While E Hulton and Cassidy were reference innuendo cases, ‘the last of those cases, the Fullam case [1977] 1 WLR 651, seems to me to have involved an alleged meaning innuendo…That is made out by the fact that the article referred to the plaintiff by name, and Lord Denning MR’s statement [1977] 1 WLR 651, 654, that the alleged libel “need[ed] someone with very special knowledge … to draw any such imputation from the article”.’: [23], [25]

Effect of the Human Right Act

  • ‘I do not consider that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms compels or even justifies the court changing the law as to innuendos…In the present case a Reynolds defence would have been available to TNL if publication of the article was in the public interest, and the journalists involved in researching, writing and publishing the article had taken reasonable steps to ensure its accuracy. If the law should afford further protection to journalists and others in a case such as this, that would be a matter for the legislature’: [27], [28]
  • On O’Shea v MGN Ltd [2001] EMLR 943, it should be restricted to its specific facts: ‘The judge said, at p 955, para 43 that it would “impose an impossible burden on a publisher if he were required to check if [every] true picture of someone [he published] resembled someone else who because of the context of the picture was defamed”. It may well be that the reasoning can be justified on the basis that, on analysis, it represents a small extension of the Reynolds defence.’: [29]

Commentary

  • “In Baturina v Times Newspapers Ltd [2011] 1 WLR 1526, the Court of Appeal rejected the argument that Hulton v Jones was incompatible with the right to freedom of expression) Article 10, ECHR) as incorporated in English law by the Human Rights Act 1998, and declined to limit liability in innuendo claims to cases where the defendant did not and could not reasonably have been expected to appreciate the innuendo meaning at the time of the statement. The defences available to the publisher already provide sufficient protection of the right”: Mark Lunney, Donal Nolan, and Ken Oliphant, Tort Law: Text and Materials (6th edn), p. 739