Clarke v the Guardian: Determining meaning in defamation claims

In ongoing defamation proceedings raised by actor Noel Clarke against The Guardian, the High Court on 1 November 2023 ruled on preliminary issues to determine the meaning of the eight publications in issue: see Clarke v Guardian News and Media Ltd [2023] EWHC 2734 (KB).

The Court held that, in each case, the statements complained of were statements of fact, rather than opinion, and that each statement was defamatory of Mr Clarke at common law. This decision does not resolve the issue of who succeeds in the substantive claim of defamation, which is set to go to trial in early 2025. Nothing in the judgment should be taken as a finding as to the truth or otherwise of the allegations that underpin the articles published.

This blog explores the key legal principles often tested in preliminary issues hearings in defamation cases, including the importance of determining the ordinary meaning of words and how to assess whether words are statements of fact or opinion.

Background

Actor Noel Clarke says that The Guardian defamed him in 8 articles they published, which referred to allegations that he had engaged in various forms of sexual harassment and in each case noted that Mr Clarke had denied these allegations.

In determining the preliminary issues, the High Court had to decide:

1. the meaning of the statements complained of contained within the articles;
2. whether the statements complained of were defamatory; and
3. whether the statements complained were, or included, statements of fact or opinion.

Legal principles

When determining meaning, the Court must establish the single natural and ordinary meaning of the words, which requires an assessment of what the hypothetical reasonable reader would understand the words to mean.

This assessment involves consideration of the "repetition rule" which is that someone who repeats the statement of another will generally be treated as having made the original statement. That is, a person will not usually avoid liability by simply referring to allegations made by someone else or by adding the word "allegedly" because a hypothetical reasonable reader would not ordinarily distinguish between the sentences "B is a scoundrel" and "A said that B is a scoundrel" and "B is a scoundrel allegedly" (see paragraphs [13]-[21] of the judgment). However, application of this rule in practice depends on the overall context of a publication.

To determine the meaning of a publication, the Court must also assess whether the words in question convey fact or opinion (see paragraph [22]). The Court will consider whether a hypothetical reasonable reader, when reading the article in context, would understand it to be conveying fact or opinion.

Decision

The Court ultimately found that the meaning of each of the first 7 articles give the impression to the hypothetical reader that there are strong grounds to believe that Mr Clarke is guilty of the conduct alleged; and in respect of the eighth article that it conveys that there are grounds to investigate Mr Clarke's conduct.

In making this decision, Justice Johnson disagreed with Mr Clarke's assertion as to the meaning of the words "sexual predator" in the first article, explaining that this was used as a hook to draw the reader in but did not alter the overall meaning of the article because in the body of the article it conveys the type of behaviours alleged against Mr Clarke (see paragraph [51]). Justice Johnson also observed the fact that the articles reported that 20 people had made similar allegations give a favourable impression as to the credibility to the allegations (see paragraph [50]). However, equally Justice Johnson found that the articles all included reference to Mr Clarke denying the allegations and this appeared prominently in the text and was reported in such a way that a reasonable reader would take his denial into account (see paragraph [49]).

Ultimately, the Court found that the statements complained of in all the articles were defamatory at common law, and that in each of the 8 articles, the statement complained of amounted to a statement of fact rather than an expression of opinion (see paragraph [69]).

Implications and outlook

This decision is a useful reminder of the principles associated with defamation proceedings and highlights in particular some of the potential risks associated with reporting on third party allegations.

While the Court may have found the eight articles to be defamatory at common law, they have not been found defamatory in law under section 1(1) of the Defamation Act 2013. The trial in respect of the substantive claim is anticipated to take place in early 2025.

To be successful at trial, Mr Clarke must show the statements have caused him or are likely to cause him serious harm. Meanwhile, to defend the claim, The Guardian may choose to rely on the defence of "truth" or that the publications were a matter of public interest. Our recent blog discusses a case where the use of this public interest defence was unsuccessful.