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URL: http://www.bailii.org/uk/cases/UKHL/1995/6.html
Cite as: [1995] 2 All ER 313, [1995] 2 AC 65, [1995] UKHL 6, [1995] 2 WLR 450

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/255

    Charleston and another (Appellants)

    v.
    News Group Newspapers Limited and another (Respondents)


    JUDGMENT

    Die Jovis 30° Martii 1995

    Upon Report from the Appellate Committee to whom was
    referred the Cause Charleston and another against News Group
    Newspapers Limited and another, That the Committee had heard
    Counsel as well on Wednesday the 25th as on Thursday the 26th
    days of January last upon the Petition and Appeal of Anne
    Charleston of Lisdonagh Cottage, Lorgan, Shrele, County Galway,
    Ireland and Ian Smith of 11 Buxton Street, Elsternwick, Victoria
    3185, Australia, praying that the matter of the Order set forth
    in the Schedule thereto, namely an Order of Her Majesty's Court
    of Appeal of the 17th day of December 1993, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and that
    the said Order might be reversed, varied or altered or that the
    Petitioners might have such other relief in the premises as to
    Her Majesty the Queen in Her Court of Parliament might seem meet;
    as upon the case of News Group Newspapers Limited and Patricia
    Chapman lodged in answer to the said Appeal; and due
    consideration had this day of what was offered on either side in
    this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of Appeal
    of the 17th day of December 1993 complained of in the said Appeal
    be, and the same is hereby, Affirmed and that the said Petition
    and Appeal be, and the same is hereby, dismissed this House: And
    it is further Ordered. That the Appellants do pay or cause to be
    paid to the said Respondents the Costs incurred by them in
    respect of the said Appeal to this House, the amount thereof to
    be certified by the Clerk of the Parliaments if not agreed
    between the parties.

    Cler: Parliamentor:

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE

    CHARLESTON AND ANOTHER
    (APPELLANTS)

    v.

    NEWS GROUP NEWSPAPERS LIMITED AND ANOTHER

    (RESPONDENTS)

    ON 30TH MARCH 1995


    Lord Goff of Chieveley
    Lord Bridge of Harwich
    Lord Jauncey of Tullichettle
    Lord Mustill
    Lord Nicholls of Birkenhead


    LORD GOFF OF CHIEVELEY


    My Lords,

    I have had the advantage of reading in draft the speech of my noble
    and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
    would dismiss the appeal.

    LORD BRIDGE OF HARWICH

    My Lords,

    The appellants are the plaintiffs in an action claiming damages for libel
    against the publishers and editor of the News of the World in respect of an
    article which appeared in that newspaper on 15 March 1992. A preliminary
    issue was ordered to be tried as to whether the article in question was capable
    of bearing any of the defamatory meanings pleaded in the plaintiffs' statement
    of claim. On 22 January 1993 Blofeld J. determined the preliminary issue in
    favour of the defendants and consequently dismissed the action. On 17
    December 1993 the plaintiffs' appeal from that decision was unaminously
    dismissed by the Court of Appeal (Butler-Sloss, Farquharson and Nolan L.JJ.)
    (unreported) Court of Appeal (Civil Division) Transcript No. 1549 of 1993.
    The plaintiffs now appeal by leave of your Lordships' House.

    The plaintiffs are an actor and actress who played the parts of Harold
    and Madge Bishop, a respectable married couple, in the popular Australian
    television serial "Neighbours" and were thus well known to an English
    audience of millions. The article complained of appears with a headline
    across most of the page in capital letters three quarters of an inch high which

    - 1 -

    reads: "STREWTH! WHAT'S HAROLD UP TO WITH OUR MADGE?"

    Immediately beneath this is a large photograph of a man and a woman nearly
    naked. The woman is leaning forward over some piece of furniture and the
    man is standing behind her apparently engaging in an act of intercourse or
    sodomy with her. Superimposed over the lower part of their bodies is an
    outline map of Australia bearing the words "CENSORED DOWN UNDER."
    To the right of this is another smaller photograph of a woman wearing a tight-
    fitting blouse or jacket with holes cut to expose her bare breasts. The face of
    the man in the large photograph is the male plaintiff's and the face of the
    woman in both photographs is the female plaintiff's. Below the photographs
    is another smaller, but still prominent, headline which reads: "Porn Shocker
    for Neighbours stars". The captions under the photographs are in small print
    and read respectively: "SOAP STUDS: Harold and Madge's faces are added
    to porn actors' bodies in a scene from the game." and "RAMSAY RAVE:
    'Madge' in kinky leather gear." Ramsay Street is where the action of
    "Neighbours" is set.

    The text of the article which follows makes it clear that the
    photographs have been produced by the makers of a pornographic computer
    game by superimposing the faces of the plaintiffs without their knowledge or
    consent on the bodies of others. The opening paragraphs of the article read:

    "What would the Neighbours say . . . straight laced Harold Bishop
    starring in a bondage session with screen wife Madge.

    "The famous faces from the TV soap are the unwitting stars of a
    sordid computer game that is available to their child fans. . . .

    "The game superimposes stars' heads on near-naked bodies of real
    porn models. The stars knew nothing about it."

    Beside this text are inset two small photographs of the plaintiffs with the
    caption: "VICTIMS: Ian and Anne." The remainder of the article castigates
    the makers of the "sordid computer game" in a tone of self righteous
    indignation which contrasts oddly with the prominence given to the main
    photograph.

    The plaintiffs must have found this publication deeply offensive and
    insulting. Many people will not only deplore this kind of gutter journalism
    but will think that the law ought to give some redress to the plaintiffs against
    the publication of such degrading faked photographs irrespective of what the
    accompanying text may have said. I have considerable sympathy with this
    point of view.

    However, your Lordships are not concerned to pronounce on any
    question of journalistic ethics nor to consider whether the publication of the
    photographs by itself constituted some novel tort. The single question of law
    to which the appeal gives rise is whether the plaintiffs have any remedy in the

    - 2 -

    tort of defamation on the basis of their pleaded claim, and this in turn narrows
    down to the question whether a claim in defamation in respect of a publication
    which, it is conceded, is not defamatory if considered as a whole, may
    nevertheless succeed on the ground that some readers will have read part only
    of the published matter and that this part, considered in isolation, is capable
    of bearing a defamatory meaning.

    The plaintiffs' statement of claim alleges that the publication conveyed
    to the reader a number of defamatory meanings. The basis on which all these
    alleged meanings rest is that the reader would have drawn the inference that
    the plaintiffs had been willing participants in the production of the
    photographs, either by posing for them personally or by agreeing that their
    faces should be superimposed on the bodies of others. But it is conceded on
    the plaintiffs' behalf, and is indeed obvious, that no reader could possibly
    have drawn any such inference if he had read beyond the first paragraph of
    the text. Thus the essential basis on which Mr. Craig's argument in support
    of the appeal rests is that, in appropriate circumstances, it is possible and
    legitimate to identify a particular group of readers who read only part of a
    publication which conveys to them a meaning injurious to the reputation of a
    plaintiff and that in principle the plaintiff should be entitled to damages for the
    consequent injury he suffers in the estimation of this group.

    It is well settled, as Mr. Craig accepts, that, save in the case of a legal
    innuendo dependent on extrinsic facts known to certain readers, no evidence
    is admissible as to the sense in which readers understood an allegedly
    defamatory publication. No legal innuendo is here alleged. But here, so
    Mr. Craig's argument runs, it goes without saying and no evidence is required
    to establish that, out of the many millions constituting the readership of a mass
    circulation newspaper like the News of the World, a significant proportion,
    when they saw the page of which the plaintiffs complain, would have done no
    more than to have read the headlines and looked at the photographs. It will be
    convenient to refer to this group as the "limited readers". The argument
    before your Lordships was substantially confined to the effect of the
    publication on the minds of the limited readers. They would, Mr. Craig
    submits, have drawn an inference defamatory of the plaintiffs as actors willing
    to participate in pornographic films and it should be left to a jury to estimate
    the size of the group constituted by the limited readers and to award damages
    accordingly for the injury which the plaintiffs' reputation must have suffered
    in the estimation of this group.

    The first formidable obstacle which Mr. Craig's argument encounters
    is a long and unbroken line of authority the effect of which is accurately
    summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p. 13,
    para. 4.11 as follows:

    "In order to determine the natural and ordinary meaning of the words
    of which the plaintiff complains it is necessary to take into account the
    context in which the words were used and the mode of publication.

    - 3 -

    Thus a plaintiff cannot select an isolated passage in an article and
    complain of that alone if other parts of the article throw a different
    light on that passage."

    The locus classicus is a passage from the judgment of Alderson B. in
    Chalmers v. Payne (1835) 2 C.M.& R.156, 159, who said:

    "But the question here is, whether the matter be slanderous or not,
    which is a question for the jury; who are to take the whole together,
    and say whether the result of the whole is calculated to injure the
    plaintiff's character. In one part of this publication, something
    disreputable to the plaintiff is stated, but that is removed by the
    conclusion; the bane and antidote must be taken together."

    This passage has been so often quoted that it has become almost conventional
    jargon among libel lawyers to speak of the bane and the antidote. It is often
    a debatable question which the jury must resolve whether the antidote is
    effective to neutralise the bane and in determining this question the jury may
    certainly consider the mode of publication and the relative prominence given
    to different parts of it. I can well envisage also that questions might arise in
    some circumstances as to whether different items of published material
    relating to the same subject matter were sufficiently closely connected as to
    be regarded as a single publication. But no such questions arise in the instant
    case. There is no dispute that the headlines, photographs and article relating
    to these plaintiffs constituted a single publication nor that the antidote in the
    article was sufficient to neutralise any bane in the headlines and photographs.
    Thus it is essential to the success of Mr. Craig's argument that he establish
    the legitimacy in the law of libel of severance to permit a plaintiff to rely on
    a defamatory meaning conveyed only to the category of limited readers.

    Your Lordships were very properly referred to the many authorities in
    which the principle of Chalmers v. Payne has been affirmed and applied. But
    it is unnecessary to go through them, since Mr. Craig accepts that these
    authorities, so far as they go, are unanimously against his proposition and that
    he is unable to rely on any other authority in support of the principle of
    severance which he now advances.

    The theme of Mr. Craig's argument runs on the following lines. All
    the earlier authorities, he submits, are explicable on the basis that the
    allegedly defamatory matter with which they were concerned was located
    somewhere in a document in which there was no likelihood that it would be
    read in isolation. In such a situation it is natural and proper to look for the
    meaning conveyed to the reader by considering the publication as a whole.
    The techniques of modern tabloid journalism, however, confront the courts
    with a novel situation with which the law has not hitherto had to grapple. It
    is plain that the eye-catching headline and the eye-catching photograph will
    first attract the reader's attention, precisely as they were intended to do, and
    equally plain that a significant number of readers will not trouble to read any

    - 4 -

    further. This phenomenon must be well known to newspaper editors and
    publishers, who cannot, therefore, complain if they are held liable in damages
    for any libel thus published to the category of limited readers.

    At first blush this argument has considerable attractions, but I believe
    that it falls foul of two principles which are basic to the law of libel. The first
    is that, where no legal innuendo is alleged to arise from extrinsic
    circumstances known to some readers, the "natural and ordinary meaning" to
    be ascribed to the words of an allegedly defamatory publication is the
    meaning, including any inferential meaning, which the words would convey
    to the mind of the ordinary, reasonable, fair-minded reader. This proposition
    is too well established to require citation of authority. The second principle,
    which is perhaps a corollary of the first, is that, although a combination of
    words may in fact convey different meanings to the minds of different readers,
    the jury in a libel action, applying the criterion which the first principle
    dictates, is required to determine the single meaning which the publication
    conveyed to the notional reasonable reader and to base their verdict and any
    award of damages on the assumption that this was the one sense in which all
    readers would have understood it. The origins and the implications of this
    second principle are the subject of a characteristically penetrating analysis in
    the judgment of Diplock L.J. in Slim v. Daily Telegraph Ltd [1968] 2
    Q.B.157, at pp. 171-174, from which it will, I think, be sufficient to cite the
    following passages:

    "Everyone outside a court of law recognises that words are imprecise
    instruments for communicating the thoughts of one man to another.
    The same words may be understood by one man in a different meaning
    from that in which they are understood by another and both meanings
    may be different from that which the author of the words intended to
    convey. But the notion that the same words should bear different
    meanings to different men and that more than one meaning should be
    'right' conflicts with the whole training of a lawyer. Words are the
    tools of his trade. He uses them to define legal rights and duties.
    They do not achieve that purpose unless there can be attributed to them
    a single meaning as the 'right' meaning. And so the argument
    between lawyers as to the meaning of words starts with the
    unexpressed major premise that any particular combination of words
    has one meaning which is not necessarily the same as that intended by
    him who published them or understood by any of those who read them
    but is capable of ascertainment as being the 'right' meaning by the
    adjudicator to whom the law confides the responsibility of determining
    it. ...

    "Where, as in the present case, words are published to the millions of
    readers of a popular newspaper, the chances are that if the words are
    reasonably capable of being understood as bearing more than one
    meaning, some readers will have understood them as bearing one of
    those meanings and some will have understood them as bearing others

    - 5 -

    of those meanings. But none of this matters. What does matter is
    what the adjudicator at the trial thinks is the one and only meaning that
    the readers as reasonable men should have collectively understood the
    words to bear. That is 'the natural and ordinary meaning' of words
    in an action for libel. . . .

    "Juries, in theory, must be unanimous upon every issue on which they
    have to adjudicate; and since the damages that they award must depend
    upon the defamatory meaning that they attribute to the words, they
    must all agree upon a single meaning as being the 'right' meaning.
    And so the unexpressed major premise, that any particular combination
    of words can bear but a single 'natural and ordinary meaning' which
    is 'right,' survived the transfer from judge to jury of the function of
    adjudicating upon the meaning of words in civil actions for libel."

    It is precisely the application of the principle so clearly expounded in
    these passages which, in a libel action where no legal innuendo is alleged,
    prevents either side from calling witnesses to say what they understood the
    allegedly defamatory publication to mean. But it would surely be even more
    destructive of the principle that a publication has "the one and only meaning
    which the readers as reasonable men should have collectively understood the
    words to bear" to allow the plaintiff, without evidence, to invite the jury to
    infer that different groups of readers read different parts of the entire
    publication and for that reason understood it to mean different things, some
    defamatory, some not.

    Whether the text of a newspaper article will, in any particular case, be
    sufficient to neutralise the defamatory implication of a prominent headline will
    sometimes be a nicely balanced question for the jury to decide and will depend
    not only on the nature of the libel which the headline conveys and the
    language of the text which is relied on to neutralise it but also on the manner
    in which the whole of the relevant material is set out and presented. But the
    proposition that the prominent headline, or as here the headlines plus
    photographs, may found a claim in libel in isolation from its related text,
    because some readers only read headlines, is to my mind quite unacceptable
    in the light of the principles discussed above.

    I have no doubt that Mr. Craig is right in his assertion that many News
    of the World readers who saw the offending publication would have looked
    at the headlines and photographs and nothing more. But if these readers,
    without taking the trouble to discover what the article was all about, carried
    away the impression that two well known actors in legitimate television were
    also involved in making pornographic films, they could hardly be described
    as ordinary, reasonable, fair-minded readers.

    I would dismiss the appeal.

    - 6 -

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech of my noble
    and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
    would dismiss the appeal.

    LORD MUSTILL

    My Lords,

    I have had the advantage of reading in draft the speech of my noble
    and learned friend, Lord Bridge of Harwich. For the reasons he gives I too
    would dismiss the appeal.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

    Newspapers get thicker and thicker. The News of the World published
    on 15 March 1992 contained 64 pages. Everybody reads selectively, scanning
    the headlines and turning the pages. One reader, whose interest has been
    quickened by an eye-catching headline or picture, will pause and read an
    article. Another reader, with different interests or less tune, will read the
    headline and pass on, leaving the article unread. What if a headline, taken
    alone or with an attached picture, is defamatory, but the text of the article
    removes the defamatory imputation? That is the question of law raised by this
    appeal.

    At first sight one would expect the law to recognise that some
    newspaper readers will have seen only the banner headline and glanced at the
    picture. They will not have read the text of the accompanying article. In the
    minds of these readers, the reputation of the person who is the subject of the
    defamatory headline and picture will have suffered. He has been defamed to
    these readers. The newspaper could have no cause for complaint if it were
    held liable accordingly. It has chosen, for its own purposes, to produce a
    headline which is defamatory. It cannot be heard to say that the article must
    be read as a whole when it knows that not all readers will read the whole
    article.

    To anyone unversed in the law of defamation that, I venture to think,
    would appear to be the common sense of the matter. Long ago, however, the
    law of defamation headed firmly in a different direction. The law adopts a

    - 7 -

    single standard for determining whether a newspaper article is defamatory: the
    ordinary reader of that newspaper. I leave aside cases where some readers
    may have special knowledge of facts which would cause them to give the
    words a different meaning.

    In principle this is a crude yardstick, because readers of mass
    circulation newspapers vary enormously in the way they read articles and the
    way they interpret what they read. It is, indeed, in this very consideration
    that the law finds justification for its single standard. The consequence is
    that, in the case of some publications, there may be many readers who
    understand in a defamatory sense words which, by the single standard of the
    ordinary reader, were not defamatory. In respect of those readers a plaintiff
    has no remedy. The converse is equally true. So a newspaper may find itself
    paying damages for libel assessed by reference to a readership many of whose
    members did not read the words in a defamatory sense.

    I do not see how, consistently with this single standard, it is possible
    to carve the readership of one article into different groups: those who will
    have read only the headlines, and those who will have read further. The
    question, defamatory or no, must always be answered by reference to the
    response of the ordinary reader to the publication.

    This is not to say that words in the text of an article will always be
    efficacious to cure a defamatory headline. It all depends on the context, one
    element in which is the lay-out of the article. Those who print defamatory
    headlines are playing with fire. The ordinary reader might not be expected
    to notice curative words tucked away further down in the article. The more
    so, if the words are on a continuation page to which a reader is directed. The
    standard of the ordinary reader gives a jury adequate scope to return a verdict
    meeting the justice of the case.

    The present case is well on the other side of the borderline. The
    ordinary reader could not have failed to read the captions accompanying the
    pictures. These made clear that the plaintiffs' faces had been superimposed
    on other actors' bodies. The plaintiffs had not themselves been indulging in
    the activities shown in the pictures. The ordinary reader would see at once
    that the headlines and pictures could not be taken at their face value. And the
    reader's eye needed to travel no further than the "victims" caption to the
    smaller photographs, and to the second sentence, at the top of the article, to
    find confirmation that the plaintiffs were "unwitting" stars in the sordid
    computer game.

    Accordingly, when the ordinary reader put down the News of the
    World on 15 March 1992, he or she would have thought none the worse of
    the two actors who are well-known for their roles in the "Neighbours"

    - 8 -

    television serial. The ordinary reader might have thought worse of the
    producers of the pornographic computer game, and of the News of the World,
    but that is a different matter. In agreement with my noble and learned friend,
    Lord Bridge of Harwich, I too would dismiss this appeal.

    - 9 -


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