Emmy Tayler v HarperCollins Publishers Limited

In 2021, HarperCollins Publishers Limited published Perversion of Justice: the Jeffrey Epstein Story. The author, Julie K. Brown, is an award-winning investigative journalist employed by the Miami Herald. The book exposes the scandal of the 2008 plea bargain which allowed the wealthy financier and paedophile, Jeffrey Epstein, to serve modest prison time for his crimes. It was, readers are told, Ms Brown’s relentless pursuit of the Epstein story that led directly to the reopening of the case, Epstein’s arrest on 6 July 2019 and subsequently the prosecution of Ghislaine Maxwell. The inside front cover claims:

Emmy Tayler is a British woman who is said in the book to have worked for Jeffrey Epstein and Ghislaine Maxwell in 2005. She is specifically named in connection with the abuse of a fourteen-year-old victim in 2005 who is referred to simply as Jane Doe 1. The book claims that Jane was recruited by another girl, Haley Robson, who had been instructed by Epstein that “the younger” the girls that she recruited for him “the better.” It then describes, at pages 13-14, the moment when Jane entered Epstein’s Palm Beach mansion:

The book recounts how, when Jane was alone in the room with Epstein, he instructed her to remove all of her clothes and straddle his back as he lay on his stomach. He then told her to climb down. He rolled over, dropped his towel, and exposed himself. He then began stroking his penis with one hand while fondling Jane’s breasts with the other. He placed a vibrator between her legs. When he ejaculated, he ordered Jane to get dressed and paid her $300.

By this claim, Ms Tayler seeks damages and other remedies for libel. She asserts that her alleged involvement in arranging Epstein’s massage schedule and in the abuse of Jane Doe 1 is demonstrably false. She says that she was not employed by Ms Maxwell in Florida in 2005 and she asserts that the 2006 police report into Jane Doe 1’s allegation named another woman as the person who had shown the girl into the bedroom.

While the truth of the statements made about Ms Tayler is not in issue in this trial of three preliminary issues, it is only fair in this public judgment to make clear that the publisher accepts that Ms Tayler was wrongly named at page 13 as the young woman who led Jane Doe 1 to Epstein’s bedroom in Palm Beach in 2005. It is the publisher’s case that, once the mistake was identified, further distribution of the book was suspended on 7 August 2021. It also says that a corrected and re-printed paperback was published the following month and that amendments have been made both to the audiobook and e-book editions of the book. There was, however, no recall of unsold books that had already been sent to distributors.

On 22 March 2022, Nicklin J ordered that there should be a trial of the following preliminary issues: (i) the natural and ordinary meaning of the statement complained of; (ii) whether the statement complained of, in any meaning found, is defamatory of Ms Tayler at common law; and (iii) whether the statement complained of is, or includes, a statement of fact or opinion. Although no defence has yet been filed, the publisher has set out a statement of its case upon each of these issues.

Ms Tayler relies on some forty-six extracts from the book but the critical passage is that quoted at paragraph 2 above. She argues that the natural and ordinary meaning of statements made in the book is that:

The publisher denies that the statements bear the meaning asserted by Ms Tayler. It argues that reasonable readers of the book would understand the statements to have the following meaning:

In Koutsogiannis v. Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 W.L.R. 25, Nicklin J helpfully summarised the well-established principles applicable when determining meaning in a passage that was subsequently approved by the Court of Appeal in Corbyn v. Millett [2021] EWCA Civ 567, [2021] E.M.L.R. 19. Nicklin J observed, at [11]-[12]:

Context is particularly important where the words complained of appear in a book. The ordinary reasonable reader is taken to have read the whole book. Such reader is unlikely to analyse the book like a lawyer, compare one passage to another, or focus on particular phrases. While the hypothetical reasonable reader is most unlikely to have read the entirety of Ms Brown’s 448-page book in a single sitting, the exercise for the court is to ascertain the broad impression made on such reader by the book taken as a whole. [See generally, Charman v. Orion Publishing Co. Ltd [2005] EWHC 2187 (QB), Gray J, at [11]-[12]; Abramovich v. HarperCollins Publishers Ltd [2021] EWHC 3154 (QB). Tipples J.]

The final sentence of the passage quoted at paragraph 2 above raises the issue of bane and antidote. As Baron Alderson famously said in Chalmers v. Payne (1835) 2 C.M. & R. 156, at p.159, “the bane and the antidote must be taken together.” In Horan v. Express Newspapers [2015] EWHC 3550 (QB), Dingemans J, as he then was, explained, at [17]:

In Sergi v. Australian Broadcasting Commission [1983] 2 N.S.W.L.R. 669, Huntley JA observed pithily, at p. 670:

Similarly, in this jurisdiction, Simon Brown LJ said in Mark v. Associated Newspapers Ltd [2002] EWCA Civ 772, [2002] E.M.L.R. 38, at [37]:

In accordance with the guidance in Tinkler v. Ferguson [2019] EWCA Civ 819, I read Ms Brown’s book from cover to cover before considering the parties’ contentions and submissions in this case so as to capture my initial reaction as a reader.

Victoria Jolliffe, who appears for Ms Tayler, argues that the book “hammers home” that it is based on a highly experienced journalist’s detailed research of court and police documents and her own investigative skills. The reader is told that it was Ms Brown’s investigative journalism that led to Epstein’s arrest in 2019 and the book is presented as an authoritative, rather than a sensationalist, account of the Epstein scandal. The reader is not left in any doubt that the accounts contained in the police reports should be taken as accurate. Indeed, Ms Brown made the point in colourful terms that she would not agree to her newspaper referring to the women as “alleged victims.” She asserted, at page 273:

Ms Jolliffe observes that Jane Doe 1’s story is the first detailed account of a victim given in the book. It was the incident that triggered the 2005 investigation and Ms Jolliffe argues that it makes a particularly memorable impression on the reader. She also stresses that Jane Doe 1 plays a significant part in the narrative.

Ms Jolliffe submits that the reader had already been told that Epstein was fifty-three in 2006, and so in his early fifties in 2005, and that Jane Doe 1 was fourteen at the time of the abuse. She submits that there is no suggestion that Jane looked older than her age and stresses that readers are told that Epstein instructed Haley Robson, the individual who is said to have recruited Jane, that “the younger the better.” Ms Jolliffe submits that even without the earlier reference to Epstein’s “preferred prey” being “waiflike prepubescent girls” it would be reasonable for a reader to infer that a paedophile might have little interest in girls who look adult.

Further, Ms Jolliffe argues that the description of Ms Tayler as the person who arranged Epstein’s massage schedule in 2005 is significant since readers had been told shortly before, at page 10, that the operation was by then in “full swing.”

Addressing, the suggested antidote (that “there has been nothing to suggest that Ms Tayler was aware of what happened in the room nor that she participated in any sexual activity”), Ms Jolliffe submits that it is insufficient to extinguish the impression in the reader’s mind that Ms Tayler knew that Epstein carried out abuse under the guise of massage, or that there were at least strong grounds to suspect that she knew. She cites Lord Nicholls’ vivid observation about “playing with fire” in Charleston v. News Group Newspapers Ltd [1995] 2 A.C. 65, at p.74C:

Ms Jolliffe points to Haley Robson’s explanation to girls that she recruited that they might have to do massages in the nude and that some “touching” might be involved (page 33), and to Alfredo Rodriguez’s account that, when he went into the master bedroom to clean the room, he would often find sex toys scattered on the floor (page 83). She submits that a reader would not need to be avid for scandal to infer that those working in the mansion in 2005, including Ms Tayler, knew that what was going on went well beyond massages, or at least to think that there were strong grounds for suspecting that she did so.

Further, Ms Jolliffe submits that even if the antidote is sufficient to extinguish the imputation that the claimant knew that Epstein sexually abused Jane Doe 1 in the room, it does nothing to remove the stain that it is asserted that Ms Tayler arranged Epstein’s massage schedule.

David Hirst, for the publisher, challenges the pleaded meaning on the basis that the fact that Epstein was a prolific paedophile and a “notorious child abuser” was neither known nor established in 2005. He points out that he had not then been arrested or charged with any offence. He submits that Ms Tayler artificially seeks to construe the book as imputing actual knowledge of criminality. He asserts that the text simply presents her as having showed Jane Doe 1 into a room for a massage.

Further, he submits that the claim seeks to present Jane as a child whereas she is described at page 12 of the book as having led a tough life, running away, partying, drinking, taking drugs, and as having lived at a “facility” for “troubled kids” while attending a school with a significant gun-violence problem. He asserts that the book records, at page 15, that when Jane stated she was 18, she was believed to be that age. Mr Hirst also points to the later passage, at page 125, that records that a police stake-out concluded that the women seen entering the mansion did not appear to have been underage.

Mr Hirst submits therefore that the pleaded meaning is the product of a strained and unreasonable interpretation, is avid for scandal, overly reliant upon inference, and impermissibly contains a number of elements which are not found in the words complained of.

In any event, he submits that this is a clear case of bane and antidote. He points out that the antidote is not in some remote part of the book but is immediately adjacent to the material said to give rise to the sting. He contends that the reasonable reader can hardly fail to notice the disclaimer or the deliberate proximity of its deployment. He submits that the antidote here is not a mere denial of an allegation but an authoritative statement by the author as to Ms Tayler’s knowledge. Readers, he submits, would notice that the disclaimer is Ms Brown’s voice intervening in the narrative to guide them to a particular conclusion. Further, he argues that the bane is in any event weak since it proceeds by inference only.

Mr Hirst also submits that the question of who is alleged to have aided and abetted Epstein is directly addressed on several occasions by the author. In doing so, Ms Brown does not name Ms Tayler.

In my judgment, the publisher’s suggested meaning seeks to minimise the extent to which the book asserted that Ms Tayler arranged Epstein’s massage schedule. There is no basis for doing so. The clear assertion made in the book is that it was Ms Tayler who arranged Epstein’s massage schedule in 2005. That is very significant because it was through the guise of massage that Epstein abused his young victims. Furthermore, the reader is told something of the scale of that operation in 2005, at page 10, just before Jane Doe 1’s account:

Further, I do not accept that Ms Tayler’s first pleaded meaning wrongly attributes knowledge of Epstein’s crimes at a time before he had been exposed as paedophile. While the second pleaded meaning asserts knowledge, the first simply asserts as a matter of fact that Epstein was in 2005 a “prolific paedophile who regularly sexually abused underage girls under the guise of paying them to receive massages.” Such assertion is central to the book. Indeed, the very opening statement at the beginning of the preface is that the position in September 2006 was as follows:

The publisher objects then to the suggested meaning that Ms Tayler “led a fourteen-year-old child” to the bedroom. It instead argues the meaning that Ms Tayler “showed an unnamed girl into a massage room” adding that “it transpired that she was underage.” Three matters can be dealt with shortly:

The publisher’s suggested meaning seeks then to imply that Jane might have looked rather older since it refers to it later “transpiring” that she was underage. Such implication is made more explicit in written argument. Mr Hirst submitted:

It is true that the book does not use the word child. There is, however, no merit in the point and I reject the unattractive argument that to describe her as a child is an artificial construct. The book is about Epstein’s systematic sexual abuse of children. At fourteen, Jane was indeed a child and any reasonable reader would so regard her.

I have already referred to the fact that readers are told right from the outset that Epstein’s sexual preference was for waiflike prepubescent girls. That claim is supported by a number of further extracts:

I acknowledge that the reader is told at page 125 that the police staked out Epstein’s mansion and observed that the “women” who came and went all “appeared to be eighteen or older, mostly college students.” The overall impression created by the book is, however, that that observation was out of step with what was really going on inside Jeffrey Epstein’s mansion. The book does not reveal the period of surveillance but, as a reader, I was left with the impression that the author considered the investigation at that stage to have been rather superficial.

At page 13, the book records Haley Robson’s instruction to Jane Doe 1 that, if Epstein asked, she was to say that she was 18. After describing the abuse of Jane Doe 1 and just before the account that he ejaculated, the book records the following event at page 15:

The author does not state that Epstein or anyone else believed Jane’s claim that she was 18. Nor is there any description of Jane as looking older than her years. In my judgment, a reasonable reader would infer that Robson’s instruction that Jane should claim to be 18 taken together with Epstein’s casual enquiry, slipped into the narrative not at the beginning of the massage but after she had been abused and he had begun masturbating himself, was nothing more than a cynical attempt to give Epstein plausible deniability should the girl’s true age later emerge. Certainly I was not left with the impression that the author was suggesting either that Jane really did look 18 or that Epstein believed her lie.

Further, I reject the unattractive argument that the fact that many of the girls had had a troubled life meant that they somehow looked older than their years. Ms Brown does not make that assertion. Rather the impression created is that the victims’ difficult and chaotic home lives was what made them vulnerable to Epstein’s abuse and, he no doubt calculated, less likely to be believed. Jane and the other victims of Epstein’s abuse were children and the reasonable reader would form the impression that they looked like the children that they were. There is much force in Ms Jolliffe’s submission that a reasonable reader would not conclude that this prolific paedophile was interested in children who looked older than their years. Indeed, such suggestion – which is not made in the book - would be somewhat counterintuitive. What he wanted, readers are told, was young, short, little, waiflike prepubescent girls.

Accordingly, I broadly accept Ms Tayler’s first pleaded meaning. It should be added that Jane was then subjected to sexual abuse.

But for the last sentence of the passage dealing with Ms Tayler’s involvement in arranging the massage, I would readily infer that the book was implying her knowing facilitation of child abuse, or at least that there were strong grounds for suspecting her knowing involvement in Epstein’s crimes. The author, however, expressly recognises that that might be going through the reader’s mind and steers one away from that conclusion. The antidote is all the more powerful for coming immediately after the passage describing Ms Tayler’s role in setting up the massage. This is not a case of the sort mentioned by Lord Nicholls in Charleston where the antidote is buried away in some remote part of a newspaper article well away from a sensational and defamatory headline. Further, the antidote is all the more authoritative for coming from someone with a very detailed knowledge of the police files and the many hours of witness testimony. Drawing on her undoubted expert knowledge of the Epstein case, there is “nothing”, Ms Brown tells her readers, to suggest that Ms Tayler was aware of what happened in Epstein’s bedroom.

I accept Mr Hirst’s submission that the antidote should not be read and dissected as a lawyer, but rather the court should consider the overall impression created in the mind of the reasonable reader taking into account both the bane and the antidote. Whatever the reader’s initial inference, I accept Mr Hirst’s submission that the disclaimer is Ms Brown’s voice intervening in the narrative to guide readers away from the conclusion that Ms Tayler was complicit in the sexual abuse of these children. As he put it in his oral submissions, Ms Brown is saying to the readers “there’s nothing to see here.”

Such conclusion is supported by the fact that in the various later passages in which Ms Brown identifies Epstein’s accomplices, Ms Tayler is not named. In particular, there is no reference to Ms Tayler in the epilogue which is devoted to informing readers as to what has become of those implicated in Epstein’s criminality. Without the direct antidote at page 14 these passages hundreds of pages later would not be sufficient to neutralise the bane. Taking however the direct antidote at page 14 together with the absence of any later suggestion that Ms Tayler was complicit in Epstein’s crimes, the book taken as a whole leaves the reasonable reader with the impression that Ms Tayler was not one of those who knowingly facilitated the sexual abuse of children.

I therefore find that the natural and ordinary meaning of the words complained of is as follows:

In Corbyn v. Millett, Warby LJ said, at [9]:

Mr Hirst argues that actual knowledge of Epstein’s criminality is necessary to establish any defamatory meaning. He contends that there was nothing unlawful in underage children providing massages to an adult man and points to a later account at pages 207-208 of Virginia Giuffre’s father driving his sixteen-year-old daughter to Epstein’s mansion for an interview as a masseuse. Ms Jolliffe replies that there are no circumstances in which the reasonable reader would think that it was acceptable to arrange for a fourteen-year-old girl to give a fifty-two-year-old man a massage in the privacy of his bedroom.

The lawfulness of the alleged conduct is plainly not determinative of the issue. Much lawful conduct may be so disreputable that the allegation is defamatory. Even without knowledge of his sexual offending, I consider that the meaning as found is clearly defamatory at common law:

The publisher accepts that the statements as to Ms Tayler’s alleged involvement in arranging Epstein’s massage schedule and in leading Jane Doe 1 into the bedroom are statements of fact and not opinion.