Law Report: No libel action against defamatory photographs: Charleston and another v News Group Newspapers Ltd. Court of Appeal (Lord Justice Butler-Sloss, Lord Justice Farquharson and Lord Justice Nolan), 17 December 1993

Although an entire article must be read to judge whether the contents are defamatory, a disclaimer or explanation of defamatory photographs or headlines, which was in a less than obvious place where the reasonable average reader might not read it, may not provide an effective antidote to negate the sting of the libel.

The Court of Appeal dismissed an appeal by the plaintiffs, Anne Charleston and Ian Smith, from Mr Justice Blofeld's order striking out their libel action against the publishers of the News of the World.

The plaintiffs, actors in the television serial Neighbours, complained about the headlines and two photographs with captions published in the News of the World in which their faces had been superimposed on models in pornographic poses. The text stated that the plaintiffs were the unwitting stars of a sordid computer game.

The plaintiffs claimed that the photographs, headlines and caption meant that the plaintiffs had behaved reprehensibly by posing for pornographic photographs.

The newspaper denied that the words and photographs complained of taken in their proper context were capable of any defamatory meaning.

The plaintiffs conceded that a reader who read the whole of the text would realise the photographs were mock-ups, but submitted that a substantial body of readers was unlikely to go beyond the photographs and headlines, and read the text so that the headlines and photographs must be seperately justified.

Kenneth Craig (Andrew Moore & Co) for the plaintiffs; James Price (Farrer & Co) for the newspaper.

LORD JUSTICE FARQUHARSON said that the publisher of an alleged defamatory publication was entitled to have the publication looked at in full and in its proper context.

The plaintiff could not select part of a statement in a document to justify his claim and ignore the passages which qualified or negated the effect of the part complained of.

In a situation where there were two distinct and separate libels, one in the headline and one in the text, it was not enough to justify the one libel and not the other. Both must be justified. But that did not support the proposition that one could look at the headline as a separate publication from the main body of the text.

The plaintiffs had been badly treated and it could be argued that they were entitled to a remedy. At the present time the law did not provide one in the circumstances.

In deciding what meaning the words conveyed to the ordinary reasonable reader, it was not possible to adduce evidence of what any individual reader understood them to mean. The publication would have a different impact on the minds of different individuals. That underlined the wisdom of the rule that the meaning of the publication could only be decided on a consideration of its contents.

LORD JUSTICE NOLAN, agreeing, said that it should not be assumed as a general rule that mere words in the same publication could always provide an effective antidote.

LORD JUSTICE BUTLER, agreeing, said that the ordinary meaning of the headings, photographs and captions standing alone was capable of being defamatory. The problem for the plaintiffs was that there was no authority for the proposition that defamatory matter contained in a headline and photograph which could be explained and negated by reading the full article could nonetheless be in itself a cause of action.

Even if there was any ground on which to consider that part of the article was potentially defamatory, this case highlighted the difficulty of treating the passage complained of separately from the rest of the article. On the facts, there was no alternative other than to strike out the action.

But the courts might yet be required to consider the impact of photographs on the reader of tabloid newspapers in particular, and the context within which, and the extent to which, the antidote might be able to meet their immediate impact, size, prominence and position.

The disclaimer or explanation of the photographs and headlines might be so placed as to be less than obvious. The principle that the article was to be read as a whole might not be appropriate where the publication of defamatory photographs and headlines was explained in such a way that the reasonable average reader might not read the explanation and the antidote might not be sufficient to counteract the bane.