Law Report: `Hideously ugly' tag could be defamatory

Berkoff v Burchill and another; Court of Appeal (Lord Justice Neill, Lord Justice Millett, Lord Justice Phillips) 31 July 1996

To call someone hideously ugly was capable of being defamatory; whether it was so or not must depend on the circumstances of the case.

The Court of Appeal by a majority (Lord Justice Millett dissenting) dismissed an appeal by the defendants, Julie Burchill and Times Newspapers Ltd, against the decision of Sir Maurice Drake, sitting as a High Court judge on 20 September 1995, refusing their application under Order 14A of the Rules of the Supreme Court to dismiss a libel action brought by the plaintiff, Steven Berkoff, on the ground that to call a person "hideously ugly" was incapable of being defamatory.

James Price QC (Theodore Goddard) for the defendants; Manuel Barca (Mishcon de Reya) for the plaintiff.

Lord Justice Neill said Mr Berkoff, an actor, director and writer, was well known for his work on stage, screen and television. Miss Burchill, a journalist and writer, wrote about the cinema for the Sunday Times. In its issue of 30 January 1994 Miss Burchill, reviewing the film The Age of Innocence, wrote: "Film directors, from Hitchcock to Berkoff, are notoriously hideous- looking people". In its issue dated 6 November 1994, reviewing the film Frankenstein, Miss Burchill described the character of "the Creature" in the film as being "a lot like Steven Berkoff, only marginally better- looking."

Mr Berkoff sued for libel, alleging that the quoted words meant and were understood to mean that he was hideously ugly. The defendants issued a summons under Order 14A, seeking an order determining whether the pleaded meaning was capable of being defamatory; and if not, that the action be dismissed.

The judge held that to call someone hideously ugly, while being no reflection on his character or reputation, and unlikely to expose him to ridicule, might nevertheless lead ordinary reasonable people to shun him, and that it was therefore capable of being defamatory.

Words might be defamatory even though they imputed neither disgraceful conduct on the part of the plaintiff, nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they held him up to contempt, scorn or ridicule, or tended to exclude him from society. But insults which did not diminish a man's standing among others did not found an action for libel or slander. The exact borderline was difficult to define.

Mr Berkoff argued that to be called "hideously ugly" exposed him to ridicule, or would cause him to be shunned or avoided. The defendants argued that the defining characteristic of the tort of defamation was injury to reputation; the fact that a statement might injure feelings or cause annoyance was irrelevant to whether it was defamatory.

The meaning of words in a libel action was determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher might colour the meaning.

In this case it would be open to the jury to conclude that, in their context, the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive but actually repulsive. To say this of someone in the public eye who made his living, in part at least, as an actor, was capable of lowering his standing in the estimation of the public and of making him an object of ridicule. In the circumstances, it would be wrong to withdraw this case from the jury.

Lord Justice Millett, dissenting, said chaff and banter were not defamatory, and even serious imputations were not actionable if no one would take them seriously.

The line between mockery and defamation might sometimes be difficult to draw; when it was it should be left to the jury to draw it. But his Lordship was not persuaded that the present case could properly be put on the wrong side of the line.

Miss Burchill made a cheap joke at Mr Berkoff's expense; she might thereby have demeaned herself, but his Lordship did not believe she had defamed Mr Berkoff. His claim was as frivolous as Miss Burchill's article and the court's time ought not to be taken up with either of them.

Paul Magrath, Barrister