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STEVEN BERKOFF v. JULIE BURCHILL and TIMES NEWSPAPERS LIMITED  EWCA
Civ 564 (31st July, 1996)
IN THE SUPREME COURT OF JUDICATURE QBENI 95/1519/E
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Drake)
Royal Courts of Justice
Wednesday, 31st July 1996
B e f o r e:
LORD JUSTICE NEILL
LORD JUSTICE MILLETT
LORD JUSTICE PHILLIPS
- - - - - -
- v -
(1) JULIE BURCHILL
(2) TIMES NEWSPAPERS LIMITED
- - - - - - -
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
- - - - - -
MR J PRICE QC (Instructed by Theodore Goddard, EC1A 4EJ)
appeared on behalf of the Appellants
MR M BARCA (Instructed by Mishcon de Reya, WC1B 5HS) appeared on
behalf of the Respondent
J U D G M E N T
(As approved )
Wednesday, 31st July 1996
LORD JUSTICE NEILL:
This appeal raises questions as to the meaning of the word
"defamatory" and as to the nature of an action for defamation.
The facts can be stated quite shortly. The plaintiff, Mr. Steven
Berkoff is an actor, director and writer who is well known for his work on
stage, screen and television. The first defendant, Miss Julie Burchill, is a
journalist and writer who at the material times was retained to write articles
about the cinema for the Sunday Times. The second defendants, Times Newspapers
Limited, are the publishers of the Sunday Times.
In the issue of the Sunday Times dated 30 January 1994 Miss
Burchill wrote a review of the film "The Age of Innocence". In the course of the
review, in a general reference to film directors, Miss Burchill wrote:
"... film directors, from Hitchcock to Berkoff are notoriously
Nine months later Miss Burchill returned to the same theme in a
review of the film "Frankenstein". In this review, which was published in the
issue of the Sunday Times dated 6 November 1994, Miss Burchill described a
character in the film called "the Creature". She wrote:
"The Creature is made as a vessel for Waldman's brain, and
rejected in disgust when it comes out scarred and primeval. It's a very new look
for the Creature - no bolts in the neck or flat-top hairdo - and I think it
works; its a lot like Stephen Berkoff, only marginally better-looking."
Following the publication of the second article Mr. Berkoff made
an immediate complaint. The complaint was rejected, however, and on 1 March 1995
Mr. Berkoff issued a writ. In paragraph 6 of the statement of claim, which was
served on the same day as the writ was issued, it was alleged that the passages
in the two articles which I have set out meant and were understood to mean that
Mr. Berkoff was hideously ugly. It is to be noted that in paragraph 5 of the
statement of claim, after the words in the second article of which complaint was
made had been set out, it was pleaded that the plaintiff would rely on the full
text of the article for context.
The defendants then issued a summons pursuant to RSC Order 14A
seeking an order that the following question of law might be determined:
"Whether the meaning pleaded in paragraph 6 of the statement of
claim ... is capable of being defamatory".
The summons also included an application for an order that if it
were determined that the meaning was not defamatory the action should be
The summons was heard by Sir Maurice Drake sitting as a High
Court Judge. After hearing argument the judge dismissed the defendants'
application, but he gave the defendants leave to appeal.
The primary submission on behalf of Mr. Berkoff before the judge
was that the meaning was defamatory because to call a person "hideously ugly"
would tend to expose him to ridicule. As a subsidiary submission it was
contended that such a description would tend to cause other people to shun or
avoid Mr. Berkoff. The judge stated his conclusion at page 6 of his judgment as
"I must say I am doubtful whether to call a person ´hideously
ugly' exposes that person to ridicule, but I have come to the conclusion that it
is likely to lead ordinary reasonable people to shun the plaintiff, despite the
fact that being hideously ugly is no reflection on a person's character or good
reputation. For that reason, albeit with hesitation, I hold that to call a
person ´hideously ugly' is defamatory. If justification is pleaded, that will
involve the jury deciding whether the plea is made out."
Before stating my conclusion I propose to examine the relevant
question of law under three headings
(1) The scope of the present application.
(2) Definitions of "defamatory".
(3) Additional Guidance from decided cases.
I turn to the first heading.
The scope of the present application.
No order has been made as to the mode of trial in this case. One
must therefore proceed on the basis that the action is likely to be tried, if at
all, with a jury. The question of fact: libel or no libel, is a matter for the
jury. But the court has jurisdiction to rule that as a matter of law words are
incapable of being defamatory.
A striking example of the exercise of this jurisdiction is
provided by the decision of the House of Lords in Capital and Counties Bank
Ltd. v. George Henty & Sons (1882) 7 App. Cas. 741. In that case the
defendants sent a circular to a large number of their customers stating "Henty
& Sons hereby give notice that they will not receive in payment cheques
drawn on any of the branches of the Capital and Counties Bank." The contents of
the circular became known and there was a run on the bank. Nevertheless it was
held by the House of Lords, affirming the majority decision of the Court of
Appeal, that in their natural meaning the words were not capable in law of being
defamatory. It may be noted that the issue had been left to the jury at the
trial but they had been unable to agree.
It is clear, however, that the court should exercise great
caution before concluding that words are incapable of a defamatory meaning. In
the present case the position is somewhat different because a specified meaning
has been isolated and the preliminary issue requires the determination of the
single question, whether that meaning is capable of being defamatory. The
practice of pleading inferential meanings is of course to be encouraged where it
is appropriate and it may often enable the court to dispose of extravagant
inferential meanings under the new procedure enshrined in RSC Order 82 Rule
3A(1). But there may be cases, of which this perhaps is one, where the
inferential meaning may not provide a wholly adequate paraphrase for the words
complained of. Thus it was suggested in the review that the appearance of the
"marginally better-looking" Creature was such that it was "rejected in disgust"
when it came out "scarred and primeval".
I turn next to consider some of the definitions of the word
Definitions of "defamatory"
I am not aware of any entirely satisfactory definition of the
word "defamatory". It may be convenient, however, to collect together some of
the definitions which have been used and approved in the past.
(1) The classic definition is that given by Lord Wensleydale
(then Parke B) in Parmiter v. Coupland (1840) 6 M & W 105, 108. He
said that in cases of libel it was for the judge to give a legal definition of
the offence which he defined as being:
"A publication, without justification or lawful excuse, which is
calculated to injure the reputation of another, by exposing him to hatred,
contempt, or ridicule."
It is to be noted that in Tournier v. National Provincial
Bank  1 KB 461 Scrutton L.J. said at 477 that he did not think that
this "ancient formula" was sufficient in all cases, because words might damage
the reputation of a man as a business man which no one would connect with
hatred, ridicule or contempt. Atkin L.J. expressed a similar opinion. At 487 he
"I do not think that it is sufficient direction to a jury on
what is meant by ´defamatory' to say, without more, that it means: were the
words calculated to expose the plaintiff to hatred, ridicule or contempt, in the
mind of a reasonable man? The formula is well known to lawyers but it is obvious
that suggestions might be made very injurious to a man's character in business
which would not, in the ordinary sense, excite either hate, ridicule, or
contempt - for example, an imputation of a clever fraud which, however much to
be condemned morally and legally, might yet not excite what a member of the jury
might understand as hatred or contempt."
(2) In Scott v. Sampson (1882) 8 QBD 491 the Court of
Queen's Bench was concerned with the question as to the evidence which might be
called by a defendant relating to the character of the plaintiff. At 503 Cave J.
explained the nature of the right which is concerned in an action for
"Speaking generally the law recognises in every man a right to
have the estimation in which he stands in the opinion of others unaffected by
false statements to his discredit; and if such false statements are made without
lawful excuse, and damage results to the person of whom they are made, he has a
right of action."
But as was pointed out in the report of the Faulks Committee
(paragraph 62) the word "discredit" is itself incapable of precise explication.
Nevertheless, in Youssoupoff v. M.G.M. Pictures Ltd. (1934) 50 TLR 581
Scrutton L.J. said that he thought that it was difficult to improve upon the
language of this definition.
(3) In Sim v. Stretch  2 All ER 1237 Lord Atkin at
1240 expressed the view that the definition in Parmiter v. Coupland
(supra) was probably too narrow and that the question was complicated by
having to consider the person or class of persons whose reaction to the
publication provided the relevant test. He concluded this passage in his speech:
"... after collating the opinions of many authorities I propose
in the present case the test: would the words tend to lower the plaintiff in the
estimation of right-thinking members of society generally?"
(4) As I have already observed, both Scrutton L.J. and Atkin
L.J. in Tournier's case drew attention to words which damage the
reputation of a man as a business man. In Drummond-Jackson v. British Medical
Association  1 WLR 688 the Court of Appeal was concerned with an
article in a medical journal which, it was suggested, impugned the plaintiff's
reputation as a dentist. Lord Pearson said at 698:
"... Words may be defamatory of a trader or business man or
professional man, though they do not impute any moral fault or defect of
personal character. They can be defamatory of him if they impute lack of
qualification, knowledge, skill, capacity, judgement or efficiency in the
conduct of his trade or business or professional activity."
It is therefore necessary in some cases to consider the
occupation of the plaintiff.
(5) In Youssoupoff v. M.G.M. Pictures Ltd. (supra)
Slesser L.J. expanded the Parmiter v. Coupland definition to include
words which cause a person to be shunned or avoided. At 587 he said:
"... not only is the matter defamatory if it brings the
plaintiff into hatred, ridicule, or contempt by reason of some moral discredit
on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned
and avoided and that without any moral discredit on [the plaintiff's] part. It
is for that reason that persons who have been alleged to have been insane, or be
suffering from certain diseases, and other cases where no direct moral
responsibility could be placed upon them, have been held to be entitled to bring
an action to protect their reputation and their honour."
Slesser L.J. added, in relation to the facts in that case:
"One may, I think, take judicial notice of the fact that a lady
of whom it has been said that she has been ravished, albeit against her will,
has suffered in social reputation and in opportunities of receiving respectable
consideration from the world."
(6) The Faulks Committee in their report recommended that for
the purpose of civil cases the following definition of defamation should be
"Defamation shall consist of the publication to a third party of
matter which in all the circumstances would be likely to affect a person
adversely in the estimation of reasonable people generally."
(7) In the Restatement, Torts (2nd), paragraph 559 the following
definition is given:
"A communication is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him."
(8) In some of the Australian States a definition of "defamatory
matter" is contained in the Code. In the Queensland Code, section 366, the
following definition is given:
"Any imputation concerning any person, or any member of his
family, whether living or dead, by which the reputation of that person is likely
to be injured, or by which he is likely to be injured in his profession or
trade, or by which other persons are likely to be induced to shun or avoid or
ridicule or despise him."
It will be seen from this collection of definitions that words
may be defamatory, even though they neither impute disgraceful conduct to the
plaintiff nor any lack of skill or efficiency in the conduct of his trade or
business or professional activity, if they hold him up to contempt scorn or
ridicule or tend to exclude him from society. On the other hand insults which do
not diminish a man's standing among other people do not found an action for
libel or slander. The exact borderline may often be difficult to define.
The case for Mr. Berkoff is that the charge that he is
"hideously ugly" exposes him to ridicule and, or alternatively, will cause him
to be shunned or avoided. I turn therefore to such guidance as can be found in
any of the decided cases to which we were either referred by counsel or to which
my own limited researches have led me.
Guidance from Decided Cases.
It will be convenient to consider the cases chronologically.
(1) In Cropp v. Tilney (1693) 3 Salk 225 the plaintiff
complained of a publication which he said had resulted in his failing to be
elected as a Member of Parliament. The words of which he complained are
irrelevant for present purposes, but it is to be noted that at 226 Holt CJ said:
"Scandalous matter is not necessary to make a libel, it is
enough if the defendant induces an ill opinion to be had of the plaintiff, or to
make him contemptible and ridiculous; as for instance, an action was brought by
the husband for riding Skimmington, and adjudged that it lay, because it made
him ridiculous, and exposed him."
It seems that the reference by Holt CJ was to the decision in
Mason v. Jennings (1680) Sir T. Raym 401, where the phrase "riding
Skimmington" was taken to imply that the plaintiff's wife beat him.
(2) In Villers v. Monsley (1769) 2 Wilson 403 the
plaintiff complained of some verses written by the defendant which suggested
that the plaintiff smelt of brimstone and which included the line:
"You old stinking, old nasty, old itchy old toad..."
The court upheld the plaintiff's award of sixpence damages which
he had received at Warwickshire Assizes. Lord Wilmot CJ said:
"... If any man deliberately or maliciously publishes anything
in writing concerning another which renders him ridiculous, or tends to hinder
mankind from associating or having intercourse with him, an action well lies
against such publisher. I see no difference between this and the cases of
leprosy and plague; and it is admitted that an action lies in those cases. ...
Nobody will eat, drink, or have any intercourse with a person who has the itch
and stinks of brimstone; therefore I think this libel actionable, and that
judgment must be for the plaintiff."
The other members of the court agreed. Gould J said:
"What is the reason why saying a man has the leprosy or plague
is actionable? It is because the having of either cuts a man off from society;
so the writing and publishing maliciously that a man has the itch and stinks of
brimstone, cuts him off from society. I think that publishing anything of a man
that renders him ridiculous is a libel and actionable..."
(3) In Dunlop Rubber Co. Ltd. v. Dunlop  1 AC 367
the plaintiff who was the inventor of a pneumatic tyre had assigned his interest
in the invention to the defendant company. The plaintiff lived in Ireland. In
1891 the plaintiff had presented the defendants' predecessors in title with a
portrait bust of himself and his signature to be used as a trademark. Later,
however, the defendants, without his permission, exhibited advertisements
containing pictures intended to represent him, but the features, which were
adapted from the portrait bust, were placed upon the body of a very tall man
dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white
waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an
injunction against the defendant company in the Chancery Division in Ireland and
the injunction was upheld by the Court of Appeal in Ireland. On appeal to the
House of Lords it was argued that leave should not have been given in Ireland to
serve a writ in London. But in the course of his speech dismissing the appeal
Lord Birkenhead LC said at 372:
"... It was said in the court below, and it has been said in
other cases which were cited to us as authorities, that such an injunction would
not be granted, and ought not to be granted, unless the court was satisfied of
the existence of a serious libel, unless indeed it was prepared confidently and
completely to anticipate what the view of a jury would be when it tried the
case. I am not sure that in some of the passages cited the case was not in this
particular put rather too high. It is sufficient for me to say that the judges
who tried this case have reached the conclusion (and I agree with them) that the
exhibition of these pictures constituted a circumstance in which that which was
done was at least capable of a defamatory meaning."
It is to be noted that the claim in the writ for an injunction
was to restrain the defendants from publishing any advertisements etc. which
contained pictures representing the plaintiff "in absurd or unsuitable costumes
or attitudes, or caricatures of him, or otherwise calculated to expose him to
public ridicule or contempt by misrepresenting his appearance or costume".
(4) In Zbyszko v. New York American (1930) 228 NY
App.Div. 277 the plaintiff, who was a wrestler, complained of references to him
in an article published by the defendant on the theory of evolution. The article
called attention to the structural resemblance between man and the gorilla. Near
the top of the page appeared a photograph of the plaintiff in a wrestling pose
and under it the words:
"Stanislaus Zbyszko, the wrestler, not fundamentally different
from the gorilla in physique."
In close proximity to the photograph of the plaintiff was a
photograph of a gorilla (described in the law report as "hideous looking") which
was stated to be a mounted specimen of the Great Kivu gorilla in Lord
Rothschild's museum in England.
The plaintiff's action, in which it was pleaded that "the
plaintiff enjoyed an international reputation for dignity ..., kindliness,
intelligence and culture" was struck out by the Supreme Court for New York
County but the case was reinstated by the Appellate Division. It was held that
the tendency of the article was to disgrace him and bring him into ridicule and
contempt. McAvoy J. said at 413:
"Any written article is actionable ... if it tends to expose the
plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil
opinion of him in the minds of others and deprives him of their society. It is
not necessary that words impute disgraceful conduct to the plaintiff. If they
render him contemptible or ridiculous, he is equally entitled to redress."
The court therefore held that the case could not be struck out
(5) In Youssoupoff v. M.G.M. Ltd. (supra) the plaintiff
complained that she could be identified with the character Princess Natasha in
the film "Rasputin, the Mad Monk". The Princess claimed damages on the basis
that the film suggested that, by reason of her identification with "Princess
Natasha", she had been seduced by Rasputin. The Princess was awarded £25,000
damages. In the Court of Appeal it was contended that if the film indicated any
relations between Rasputin and "Natasha" it indicated a rape of Natasha and not
a seduction. Slesser L.J. considered the defamatory nature of the film at 587:
"I, for myself, cannot see that from the plaintiff's point of
view it matters in the least whether this libel suggests that she has been
seduced or ravished. The question whether she is or is not the more or the less
moral seems to me immaterial in considering this question whether she has been
defamed, and for this reason, that, as has been frequently pointed out in libel,
not only is the matter defamatory if it brings the plaintiff into hatred,
ridicule, or contempt by reason of some moral discredit on her part, but also if
tends to make the plaintiff be shunned and avoided and that without any moral
discredit on her part. It is for that reason that persons who have been alleged
to have been insane, or to be suffering from certain diseases, and other cases
where no direct moral responsibility could be placed upon them, have been held
to be entitled to bring an action to protect their reputation and their honour."
Later he added at 588:
"When this woman is defamed in her sexual purity I do not think
that the precise manner in which she has been despoiled of her innocence and
virginity is a matter which a jury can properly be asked to consider."
(6) In Winiard v. Tatler Publishing Company Ltd. (16 July
1991) (unreported) the Tatler magazine published an article which contained a
reference to a residential health spa of which Mr. Stephen Winiard and Mrs.
Winiard, his mother, were directors. Mrs. Winiard complained of a sentence which
was in these terms:
"His mother, Gaynor Winiard, is an internationally renowned
beauty therapist (known more familiarly on the beautician circuit as ´the
One of the meanings of "boot" relied on by Mrs. Winiard was that
it meant "an ugly harridan". At the trial the judge considered a submission that
in this meaning the word "boot" was not capable of being defamatory. He said:
"In their context, applied to a lady who is in the alleged libel
itself described as ´a beauty therapist' and ´someone on the beautician circuit'
to call such a person ´an ugly harridan' is in my view something beyond mere
ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it
thought right, would be entitled, within the well known definition (which I am
not going to repeat here but I shall state to the jury) of finding to be
It seems that the "well known definition" was that of Lord Atkin
in Sim v. Stretch (supra): "would the words tend to lower the plaintiff
in the estimation of right-thinking members of society generally?"
In his judgment in the Court of Appeal Staughton L.J. referred
to the judge's ruling:
"It may well be that in some cases to say that a woman is old
and ugly or haggard would do no more than cause injury to her feelings, and
would not affect her character or reputation. The judge evidently felt that a
different view might be taken if she was a beauty therapist. It is not,
apparently, that she would have failed to exercise her skills in preserving her
own appearance, but that others might not wish her to be in charge of their
treatment. I entirely agree with the judge's ruling on this point; it was open
for the jury, if they thought fit, to find that this meaning of the word ´boot'
lowered Mrs. Winiard's character or reputation. Whether they did reach that
conclusion we do not know. It may be that their verdict was entirely based on
the innuendo meaning of a promiscuous slut, which (if established) was far more
(7) In Manning v. Hill (1995) DLR (4th) Issue 129 the
Supreme Court of Canada was concerned with the relationship between the common
law action for defamation and the Canadian Charter of Rights and Freedoms. In
the course of his judgment, with which the majority of the court agreed, Cory J.
considered the nature of actions for defamation and the values which require to
be balanced. At page 160 he traced the history of proceedings designed to
protect the reputation of an individual. Starting with the provisions of the
Mosaic code he came to the origins of the modern law of libel arising out of the
case De Libellis Famosis (1605) 5 Co. Rep. 125a. At page 162 he
"Though the law of defamation no longer serves as a bulwark
against the duel and blood feud, the protection of reputation remains of vital
importance. ... reputation is the ´fundamental foundation on which people are
able to interact with each other in social environments.' At the same time, it
serves the equally or perhaps more fundamentally important purpose of fostering
our self-image and sense of self-worth. This sentiment was eloquently expressed
by Stewart J. in Rosenblatt v. Bear (1966) 383 US 75 at 92: "The right of
a man to the protection of his own reputation from unjustified invasion and
wrongful hurt reflects no more than our basic concept of the essential dignity
and worth of every human being - a concept at the root of any decent system of
It was argued by counsel on behalf of the defendants that the
defining characteristic of the tort of defamation is injury to reputation. The
fact that a statement may injure feelings or cause annoyance is irrelevant to
the question whether it is defamatory. He reminded us of Lord Atkin's words in
Sim v. Stretch (supra) who said at 1242 that though the freedom of juries
to award damages for injury to reputation was one of the safeguards of liberty,
the protection was undermined "when exhibitions of bad manners or discourtesy
are placed on the same level as attacks on character, and are treated as
Counsel accepted that it was also defamatory to say of a man
that he was suffering from certain diseases. But he submitted that a distinction
had to be drawn between an allegation that someone was physically unwholesome
and an allegation that someone was physically aesthetically unpleasing. It could
not be defamatory to say that an individual had a streaming cold or influenza,
so the test of being "shunned or avoided" cannot be applied without
qualification. It was also to be noted that it was not suggested in the
Youssoupoff case that there was no evidence on which it could be found
that the passages complained of were defamatory of the Princess: see Greer L.J.
Counsel for Mr. Berkoff on the other hand contended that the
present case fell into the residual class where words may be defamatory even
though they do not involve an attack on a plaintiff's reputation in the
conventional sense. Mr. Berkoff, it was said, is an actor and a person in the
public eye. It was submitted that it was necessary to look at all the
circumstances. If this were done it was a matter for the jury to decide whether
the words complained of had passed beyond mere abuse and had become defamatory
by exposing Mr. Berkoff to ridicule or by causing him to be shunned or avoided.
It was suggested that these two passages would reduce the respect with which he
was regarded. The words complained of might affect Mr. Berkoff's standing among
the public, particularly theatregoers, and among casting directors.
In his helpful submissions on behalf of the defendants Mr. Price
QC rightly underlined the central characteristic of an action for defamation as
being a remedy for publications which damage a person's reputation. But the word
"reputation", by its association with phrases such as "business reputation",
"professional reputation" or "reputation for honesty", may obscure the fact that
in this context the word is to be interpreted in a broad sense as comprehending
all aspects of a person's standing in the community. A man who is held up as a
figure of fun may be defeated in his claim for damages by, for example, a plea
of fair comment, or, if he succeeds on liability, the compensation which he
receives from a jury may be very small. But nevertheless the publication of
which he complains may be defamatory of him because it affects in an adverse
manner the attitude of other people towards him.
It was argued on behalf of Mr Berkoff that in considering
whether words were capable of a defamatory meaning it was necessary to take into
account every possible group of persons to whom the words might apply. Could the
words be defamatory of anyone? In my opinion this is not the right test. Mr
Price was, I think, correct when he submitted that the question has to be
answered in relation to the claim by the plaintiff. But if this is done, one has
to look at the words and judge them in the context in which they were published.
Indeed, as I pointed out earlier, it is pleaded in the statement of claim that
reliance will be placed on the context. It may be that in some contexts the
words "hideously ugly" could not be understood in a defamatory sense, but one
has to consider the words in the surroundings in which they appear. This task is
particularly important in relation to the second article.
It is trite law that the meaning of words in a libel action is
determined by the reaction of the ordinary reader and not by the intention of
the publisher, but the perceived intention of the publisher may colour the
meaning. In the present case it would in my view be open to a jury to conclude
that in the context the remarks about Mr Berkoff gave the impression that he was
not merely physically unattractive in appearance but actually repulsive. It
seems to me that to say this of someone in the public eye who makes his living,
in part at least, as an actor, is capable of lowering his standing in the
estimation of the public and of making him an object of ridicule
I confess that I have found this to be a far from easy case, but
in the end I am satisfied that it would be wrong to decide this preliminary
issue in a way which would withdraw the matter completely from the consideration
of a jury.
I would dismiss the appeal.
LORD JUSTICE MILLETT: Many a true word is spoken in jest. Many a
false one too. But chaff and banter are not defamatory, and even serious
imputations are not actionable if no one would take them to be meant seriously.
The question, however, is how the words would be understood, not how they were
meant, and that issue is pre-eminently one for the jury. So, however difficult
it may be, we must assume that Miss Julie Burchill might be taken seriously. The
question then is: is it defamatory to say of a man that he is "hideously ugly"?
Mr. Berkoff is a director, actor and writer. Physical beauty is
not a qualification for a director or writer. Mr. Berkoff does not plead that he
plays romantic leads or that the words complained of impugn his professional
ability. In any case, I do not think that it can be defamatory to say of an
actor that he is unsuitable to play particular roles.
How then can the words complained of injure Mr. Berkoff's
reputation? They are an attack on his appearance, not on his reputation. It is
submitted on his behalf that they would cause people "to shun and avoid him" and
would "bring him into ridicule". Ridicule, it will be recalled, is the second
member of a well-known trinity.
The submission illustrates the danger of trusting to verbal
formulae. Defamation has never been satisfactorily defined. All attempted
definitions are illustrative. None of them is exhaustive. All can be misleading
if they cause one to forget that defamation is an attack on reputation, that is
on a man's standing in the world.
The cases in which words have been held to be defamatory because
they would cause the plaintiff to be shunned or avoided, or "cut off from
society", have hitherto been confined to allegations that he suffers from
leprosy or the plague or the itch ( Villers v. Mosley (1769) 2 Wils. KB
403) or is noisesome and smelly (ib.). I agree with Phillips LJ. and for the
reasons which he gives that an allegation of ugliness is not of that character.
It is a common experience that ugly people have satisfactory social lives -
Boris Karloff is not known to have been a recluse - and it is a popular belief
for the truth of which I am unable to vouch that ugly men are particularly
attractive to women.
I have no doubt that the words complained of were intended to
ridicule Mr. Berkoff, but I do not think that they made him look ridiculous or
lowered his reputation in the eyes of ordinary people. There are only two cases
which have been cited to us which are at all comparable. In Winyard v. Tatler
Publishing Co. (C.A. unreported: 16th June 1991) it was held to be
defamatory to call a professional beautician "an ugly harridan", not because it
reflected on her professional ability, but because some of her customers might
not wish to be attended by an ugly beautician. I find the decision difficult to
understand, since the reasoning suggests that the cause of action would more
properly be classified as malicious falsehood rather than defamation, so that
actual loss of custom would have to be proved.
The other case is Zbyszko v. New York American Inc.
(1930) 2239 NYS 411. A newspaper published a photograph of a particularly
repulsive gorilla. Next to it appeared a photograph of the plaintiff above the
caption: "Stanislaus Zbyszko, the Wrestler: Not Fundamentally Different from the
Gorilla in Physique." The Statement of Claim alleged that this had caused the
plaintiff to be shunned and avoided by his wife (who presumably had not noticed
her husband's physique until it was pointed out to her by the newspaper) his
relatives, neighbours, friends and business associates, and had injured him in
his professional calling. The New York Court of Appeals held that the caption
was capable of being defamatory. The case was presumably cited to us as
persuasive authority. I find it singularly unpersuasive except as a
demonstration of the lengths of absurdity to which an enthusiastic New York
lawyer will go in pleading his case.
The line between mockery and defamation may sometimes be
difficult to draw. When it is it should be left to the jury to draw it. Despite
the respect which is due to the opinion of Neill LJ, whose experience in this
field is unrivalled, I am not persuaded that the present case could properly be
put on the wrong side of the line. A decision that it is an actionable wrong to
describe a man as "hideously ugly" would be an unwarranted restriction on free
speech. And if a bald statement to this effect would not be capable of being
defamatory, I do not see how a humorously exaggerated observation to the like
effect could be. People must be allowed to poke fun at one another without fear
of litigation. It is one thing to ridicule a man; it is another to expose him to
ridicule. Miss Burchill made a cheap joke at Mr. Berkoff's expense; she may
thereby have demeaned herself, but I do not believe that she defamed Mr.
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. I would
allow the appeal and dismiss the Action.
LORD JUSTICE PHILLIPS: In almost every case in the books, words
which have been held to be defamatory have been words which have denigrated the
character or personality of the Plaintiff, not the corporeal envelope housing
that personality. The law of defamation protects reputation, and reputation is
not generally dependent upon physical appearance. Exceptionally there has been a
handful of cases where words have been held defamatory, notwithstanding that
they do not attack character or personality.
As Hunt J. observed in Boyd v Mirror Newspapers Ltd
 2 NSWLR 449 at 453:
At common law, in general, an imputation, to be defamatory of
the Plaintiff, must be disparaging of him... I say that this is "in general" the
position, as the common law also recognises as defamatory an imputation which,
although not disparaging, tends to make other persons "shun or avoid" the
plaintiff, for example by attributing to him that he is insane: Morgan v
Lingen (1863) 8 LT 800; or by attributing to her that she has been raped, as
well as an imputation that displays the plaintiff in a ridiculous light,
notwithstanding the absence of any moral blame on his part.
'Shun or Avoid'
It is not easy to find the touchstone by which to judge whether
words are defamatory which tend to make other persons shun or avoid the
Plaintiff, but it is axiomatic that the words must relate to an attribute of the
Plaintiff in respect of which hearsay alone is enough to provoke this reaction.
That was once true of a statement that a woman had been raped and would still be
true of a statement that a person has a serious infectious or contagious
disease, or is physically unwholesome or is mentally deranged. There is
precedent for holding all such statements defamatory. There is, however, with
one possible exception, no precedent for holding it defamatory to describe a
person as ugly. In my judgment such a statement differs in principle from those
statements about a person's physical condition which have been held to be
defamatory. Those statements have, in every case, been allegations of fact -
illness, madness, filthiness or defilement. Hearsay factual statements about a
person's physical condition can clearly be capable of causing those who hear or
read them to avoid the subject of them. In contrast, a statement that a person
is ugly, or hideously ugly, is a statement of subjective appreciation of that
individual's features. To a degree both beauty and ugliness are in the eye of
the beholder. It is, perhaps, just possible to think of a right minded person
shunning one of his fellow men because of a subjective distaste for his
features. What I find impossible to accept is that a right minded person would
shun another merely because a third party had expressed distaste for that other
It is perhaps for this reason that statements disparaging,
however strongly, a person's features - and many such statements must have been
published - have never been the subject of a successful claim for defamation.
My conclusion is that a statement that a person is hideously
ugly does not fall into that category of statements that are defamatory because
they tend to make people shun or avoid the Plaintiff.
The class of cases where it has been held defamatory, or
potentially defamatory, to damage a Plaintiff's reputation by exposing him to
ridicule is too elusive to encapsulate in any definition. No case demonstrates
this better than Dunlop Rubber Company Ltd v Dunlop  1 A.C.367 the
facts of which have been outlined by Neill L.J. The preliminary point which is
the subject of this appeal does not require us to decide whether the
publications complained of are capable of constituting defamation of the
Plaintiff. The question which we are asked to answer is whether "the meaning
pleaded in paragraph 6 of the Statement of Claim is capable of being
defamatory." The Defendant's skeleton argument opened with the following
The question of law for decision is whether a statement that an
individual is ugly is capable of being defamatory. If this statement is
defamatory in one case, it must be in all cases (in the absence of any
distinguishing features of a particular case), so that there is no distinction
to be drawn between the technical issue of law, whether it is capable of being
defamatory, and the technical issue of fact, whether it is defamatory.
I cannot accept this proposition. Where the issue is whether
words have damaged a Plaintiff's reputation by exposing him to ridicule, that
question cannot be answered simply by considering whether the natural and
ordinary meaning of the words used is defamatory per se. The question has to be
considered in the light of the actual words used and the circumstance in which
they are used. There are many ways of indicating that a person is hideously
ugly, ranging from a simple statement of opinion to that effect, which I feel
could never be defamatory, to words plainly intended to convey that message by
way of ridicule. The words used in this case fall into the latter category.
Whether they have exposed the Plaintiff to ridicule to the extent that his
reputation has been damaged must be answered by the Jury. The preliminary point
raised by the Defendant cannot be answered in the affirmative and this appeal
should be dismissed.
Order: Appeal dismissed by a majority with costs; leave to
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