The defendants, who were the proprietors and publishers of a newspaper, published in an article in their paper defamatory statements of a named person believed by the writer of the article and by the defendants to be a fictitious personage with an unusual name not likely to be that of an existing individual; the name was in fact that of the plaintiff, who was unknown to the writer of the article and to the editor of the newspaper. During the trial of an action for libel it was admitted that neither the writer nor the defendants intended the defamatory statements to apply to the plaintiff, but evidence was given by friends of the plaintiff who had read the article that they thought the article referred to him. On appeal by the defendants from a verdict and judgment in favour of the plaintiff.
Held: (Lord Alverstone CJ and Farwell LJ (Fletcher Moulton LJ dissenting) The plaintiff was entitled to succeed.
Per Lord Alverstone CJ: Where an untrue and defamatory statement in writing is published without lawful excuse, which in the opinion of the jury upon the evidence refers to the plaintiff, the cause of action is made out, the question not being whether the defendant intended the defamatory language to refer to the plaintiff, but whether it was understood by reasonable people who knew the plaintiff to refer to him.
Per Fletcher Moulton LJ: In order to prove the allegation in an action of libel that the defamatory words were written and published ‘ of and concerning the plaintiff ‘ it must be shewn affirmatively that the defendant intended them to refer to the plaintiff.
Per Farwell LJ : It is not enough for a plaintiff in libel to shew that the defendant has made a libellous statement, and that the plaintiff’s friends and acquaintances believe it to be written of him : he must also prove that the defendant printed and published it of him. This can be done not only by shewing that such was the defendant’s actual intention, but also by shewing that the statement is made recklessly, careless whether it fits the plaintiff or not. The question is not what the defendant really intended in his heart, but what his words taken with the relevant surrounding circumstances and fairly construed mean. The fact that the plaintiff was unknown to the defendant is not of itself a conclusive defence.
Judges:
Lord Alverstone CJ, Fletcher Moulton LJ, Farwell LJ
Citations:
[1909] UKLawRpKQB 110, (1909) 2 KB 444
Links:
Jurisdiction:
England and Wales
Citing:
Mentioned – Emmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .
Cited by:
Appeal from – Hulton and Co v Jones HL 6-Dec-1909
The defendant newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was ‘with a woman who is not his . .
Cited – Simon and Others v Lyder and Another PC 29-Jul-2019
(Trinidad and Tobago) The Board was asked as to the well-known conundrum in the common law of defamation, namely the extent to which (if at all) two or more different statements made upon different occasions by the same defendant may be aggregated . .
Cited – Bradley and another v Independent Star Newspapers 1-Jun-2011
(Supreme Court of Ireland) A claimant can give evidence about persons who made contact with him and by their conduct or statements had indicated they had identified him as the subject of the libel, or evidence that he had been the subject of . .
Lists of cited by and citing cases may be incomplete.
Defamation
Updated: 24 April 2022; Ref: scu.653304
