E Hulton & Co v Jones [1910] AC 20

Key Point

  • The test for intention in libel is objective (‘what others knowing the circumstances would reasonably think think to be defamatory’), not subjective.

Facts

  • The defendants were publishers of a newspaper. They published a defamatory article of a person named ‘Artemus Jones’, who they thought to be fictional, having an affair.
  • The claimant, who happened to be named Artemus Jones, sued in defamation.
  • The Court of Appeal decided in favour of the claimant.
  • The defendants appealed on the basis that they had no intention for the words to apply to the claimant as they were not even aware of his existence.

Held (House of Lords)

  • Appeal dismissed.
  • It was no defense that the publishers had no intention to defame the claimant.

Lord Loreburn LC

  • ‘Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has nonetheless imputed something disgraceful and has nonetheless injured the plaintiff.’: p. 23

Commentary

  • In cases such as this, the defendant can still argue that no reasonable person would be able to identify the claimant as the subject of the defamatory statement and thereby disarm the test – although on the facts of E Hulton this was not proven
  • The defendant may argue unintentional defamation in the alternative, but this is only a partial defence.