Berkoff v Burchill [1996] 4 All ER 1008; [1997] EMLR 139

Key point

  • Comments will be considered defamatory based on the reaction of their reader, not the intention of the publisher

Facts

  • The defendant was a film critic, who had described the claimant, a writer, director and actor, as  ‘notoriously hideous-looking’ and ‘only marginally better-looking than the creature in Frankenstein’  in the Sunday Times
  • The claimant proceeded to sue for libel
  • The defendant appealed on a question of law, questioning whether the statements in question were capable of being defamatory at all

Held (Court of Appeal)

  • Appeal dismissed, as the comments held the claimant up to public ridicule, and were thus potentially defamatory, their actual effect being open to a jury decision

Neil LJ and Phillips LJ

  • Generally, comments about the appearance, rather than personality of the claimant may not be considered defamatory, except where they may cause the claimant to be shunned, avoided or exposed to ridicule (have potential to lower their standing in society):  [155]
  • While calling someone ugly is in itself no defamation, with beauty lying in the eye of the beholder, the context of the words may expose a claimant to ridicule and thus make them potentially defamatory: [154]
  • In light of the particular circumstances of the case at hand (the claimant being an actor in the public eye, relying on their appearance for a living), the words used by the defendant exposed the claimant to ridicule: [151], [155]
  • Having established the defamatory potential of the words, it should be open for a jury to decide that they actually damaged the claimants reputation: [156]

Millett LJ (Dissenting)

  • Jokes and remarks which are not meant to be taken seriously (or wouldn’t be taken seriously by the average reader, even if intended otherwise) should not be defamatory: [152]
  • Defamation, as it was intended, applies to statements that cause people to shun, avoid or ridicule the claimant, cutting them off from society but, the statement in question did neither, as there are examples of ugly, yet successful people in the arts: [152]
  • The argument of free speech was made: ‘A decision that it is an actionable wrong to describe a man as “hideously ugly” would be an unwarranted restriction on free speech… People must be allowed to poke fun at one another without fear of litigation.’: [153]
  • NB: In the judgment, Millet LJ makes a point of voicing his discontent with the proceedings in themselves: ‘If I have appeared to treat Mr Berkoff’s claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill’s article. The time of the Court ought not to be taken up with either of them.’ [153]

Commentary

  • The case may have been decided differently today, due to the introduction of the honest opinion defense