Miah v British Broadcasting Corporation

This is the hearing of a preliminary issue about the meaning of news reports broadcast by the Defendant British Broadcasting Company (“BBC”) on BBC 1 as part of the news programme “Look North” at 6.30 pm and 10.30 pm on 6 October 2015, and an outline article also published on 6 October 2015, and which (with modifications) is still online.

The Claimant Dr Rina Miah (“Dr Miah”) is a general practitioner. Dr Miah had, until August 2015, run the Harbottle Surgery in Northumberland which was reported in the broadcast to be England’s most rural practice.

Although an application had been made for, among other matters, the hearing of a preliminary issue about the meaning of the broadcasts and online article no order for such a hearing to take place had been made. The parties had agreed to have such a hearing and prepared for the hearing, so it was agreed that I should make an order directing the hearing of a preliminary issue. I should record that in many cases an early determination as to meaning will assist the parties to narrow the issues between them and prepare effectively for trial. However given the very limited practical effect of determining meaning in this case I would, but for the fact that the parties were present and ready for the hearing, have required some persuasion that the costs of the separate hearing on meaning were justified.

It was common ground between the parties that, whatever meaning I determined the broadcast and online article to bear, the publications satisfied the “serious harm” requirement set out in section 1 of the Defamation Act 2013.

In the course of submissions, I was invited by Ms Marzec to google Dr Miah’s name to see whether the online article came up as a first hit for the name. I declined to do so and have not done so. This is because the hearing of a preliminary issue is a hearing in open Court. If there is any relevant evidence it should be properly proved and admitted so that the parties and the public can see what is being done. It would be inconsistent with the principles of open justice for a Judge to carry out their own research into matters of fact, even at the invitation of a party. This is because in an adversarial system it is for the parties to adduce evidence. It is for these reasons that jurors, sitting as a tribunal of fact in a Crown Court, are forbidden from carrying out any such research into the parties or the case. If the parties want to prove what are the results of internet searches on Dr Miah’s name it can be done very easily by adducing evidence about the results. I should also record that the results of any such search would be irrelevant for the purpose of determining meaning, which was the only issue for me to determine.

In February 2017 and in May 2017 short additional text was added underneath the online article. The parties have not asked me to determine whether the meaning of the amended articles is different, and if so, what is the meaning of the amended online articles.

The early evening edition of BBC Look North was broadcast after the national 6 pm news. The parties have produced the text, description of what can be seen, and timings from the start of the programmes which I have set out below.

The later evening edition of BBC Look North was broadcast after the national 10 pm news. The text, description of what can be seen, and timings from the start of the programme are set out below.

The broadcasts were for 2 minutes 44 seconds and 1 minute 46 seconds respectively.

The online article was headlined: “Former Harbottle Surgery doctor investigated for fraud”. There was a photograph of the surgery. Paragraph numbers have been added by the parties for ease of reference.

It is common ground that the meaning for the two broadcasts is the same. The meaning of the broadcasts and online article is contended to be different in a minor respect by Dr Miah, but contended to be the same by the BBC.

In relation to the news broadcasts, Dr Miah’s case is that the defamatory meaning is that: “There were reasonable grounds to suspect and to investigate the Claimant of defrauding the NHS of public money while running Harbottle surgery”.

In respect of the online article, Dr Miah pleads that it meant that: “There were, and at the date of the publication of the online article there continued to be, reasonable grounds to suspect and to investigate the Claimant of defrauding the NHS of public money while running Harbottle surgery”. I have underlined the additional words contended for in relation to the publication of the online article.

The BBC’s case on meaning in relation to all three publications, is that they meant: “As at 6 October 2016 (the date of the original publications) the Claimant was the subject of a fraud investigation by the NHS; and/or there were grounds to investigate whether Claimant had committed fraud whilst a GP at Harbottle Surgery”.

When deciding the meaning of words, a judge is providing written reasons for the judge’s conclusion as to the meaning to be attributed to the words sued upon. A Judge should not fall into the trap of conducting an over elaborate analysis of the various passages relied on by the respective protagonists. The meaning is to be determined from the viewpoint of the layman, not by the techniques of a lawyer, see Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17 at paragraph 53. The exercise has been described as one of ascertaining the broad impression made on the hypothetical reader by the words taken as a whole. The natural and ordinary meaning of words includes what the reasonable man will infer from the words, see Gatley on Libel and Slander, 12^th Edition, at paragraph 3.18. It was common ground that the Court is entitled to reach its own conclusions on meaning, and is not required to adopt meanings advanced by either party.

The applicable principles were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:

"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7)… the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' …. (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.”

In Charleston v News Group Newspapers [1995] 2 A.C. 65. Charleston provides that the meaning of the article was to be taken from the article as a whole, and that it is not permissible to take a headline in isolation from the text of an article. It also reaffirmed the principle that although different readers may understand the article to mean different things, the meaning understood by the hypothetical reasonable reader is the single meaning from the article for the purposes of libel, see Charleston at [71]G.

The Court should have proper regard for context, see paragraphs 12 and 13 of Bukowsky v Crown Prosecution Service [2017] EWCA Civ 1529; [2018] EMLR 5. The fact that two of the publications were on television is relevant to the issue of context because it will be seen only once. It was said “In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer we are entitled (if not bound) to have regard to the impression it made on us”, see Skuse v Granada Television [1996] EMLR 278. It was common ground that impression should not be used as a cover for selecting a bad meaning over a good one.

As appears from the respective meanings contended for by the parties, there is a difference between the level of Chase (from Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11) meaning attributed to the article. The Chase levels of meaning were derived from the decision in Lewis v Daily Telegraph [1964] AC 234.

At paragraph 45 of Chase Brooke LJ identified that the sting of a libel may be capable of meaning (1) “that the Claimant has committed the act”; (2) “that there are reasonable grounds to suspect that the Claimant has committed the act”; (3) “that there are grounds for investigating whether the Claimant has committed the act”.

Gatley suggests that, on one reading of Lord Devlin’s speech in Lewis v Daily Telegraph [1964] AC 234 there might be a level 4 meaning namely (4) “that the Claimant is being investigated”. However whether a level (4) meaning would be defamatory (in the sense of passing the threshold of serious harm set out in section 1 of the Defamation Act 2013) might be contestable depending on the context. In my judgment in many cases it will only be because of the implicit meaning (at Chase levels 1, 2 or 3) that the statement “the Claimant is being investigated” would be defamatory. This suggests that there are not likely to be many cases where a Chase level 4 meaning will be found.

As Gatley at paragraph 3.28 points out “the line between level 2 and level 3 meanings can be somewhat blurred”, and meanings do not need to fit into precise pigeon holes. As a variation on ground 2 reference has been made to “cogent grounds to suspect the Claimant”, see Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB). There was some suggestion in argument that this might be considered to be a Chase level 2A meaning. The relationship between the repetition rule and Chase meanings was addressed in Brown v Bower [2017] EWHC 2637 (QB); [2017] 4 WLR 197. In that case it was held that there were “grounds to suspect”, see paragraph 41(iii) of Brown v Bower. There was discussion in the course of submissions that this might be a Chase level 2C meaning with the original Chase level 2 meaning (“reasonable grounds to suspect”) as a Chase level 2B. The practical difference between a Chase level 2B (“reasonable grounds to suspect”) and Chase level 2C meaning (“grounds to suspect”) was not immediately apparent. This is because unreasonable grounds to suspect are not likely to be grounds to suspect. The submissions made by Ms Marzec and Ms Evans were excellent and the discussion about Chase levels of meaning was very interesting, but it is important to remember that the Chase levels are a distillation from the judgment of Lord Devlin in Lewis v Daily Telegraph and are designed to assist in determining meaning, and they are not a straight-jacket.

Ms Marzec referred to Flood v Times Newspapers Ltd [2013] EWHC 2182 (QB) at paragraph 24 as support for the proposition that a reasonable reader will not treat archive material as stating no more than what was the position at the time at which the article was originally published.

Ms Evans made submissions, by reference to a number of authorities including: [2013] EMLR 16, Bennett v News Group Newspapers [2002] EMLR 39; Fallon v MGN Ltd [2006] EWHC 783; [2006] EMLR 19; Hinranadani-Vandrevala v Times Newspapers [2016] EWHC 250 (QB); and Brown v Bower; to the effect that absence of a detail in an article to enable the reader to judge the allegations should lead to a finding that the meaning ought to be either “grounds to investigate” or “grounds to suspect”. In response Ms Marzec referred me to footnote 327 in Gatley at 3.28 where it was stated “in practice a statement that C is under investigation will almost always justify the inference that the police have some basis for suspicion …”.

I accept that in Brown v Bower the reason that the adjectives “strong” or “reasonable” were not used because the reader could not assess the strength of the case on the information available, and in that case it was held that the hypothetical reasonable reader would not have thought that the News of the World had to have strong grounds before publishing the material. That was a specific case in relation to a short passage in a book. It is also relevant to remember that the suggested meanings in this case are imputations as to fact and are not comment where the reader has material on which to assess the comment. Further, as the footnote in Gatley makes clear there may be automatic investigations following the use of police firearms where grounds to suspect may not be the meaning. Everything depends on reasonableness, context and the words used, as is apparent from Lewis v Daily Telegraph and Jeynes, and I will apply the principles summarised in Jeynes and Bukowsky.

In my judgment the broadcasts have the meaning that “there were reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”. I make this finding because the broadcasts make it plain that there is a fraud investigation, that the fraud investigation relates to Dr Miah’s actions at the surgery, and that the investigation was being pursued by NHS Protect which investigates fraudulent activity, specialises in fraud and that is what the investigation is linked to. The involvement of NHS Protect, which investigates fraudulent activity and specialises in fraud, shows that this state of affairs has gone beyond “grounds to investigate” and means that there are reasonable grounds to suspect. In my judgment the reported denial does not prevent the broadcasts having this meaning. This is because the investigation has been reported notwithstanding the denial, and the solicitors’ statements that there was not an investigation appear to be contradicted by the statement from the NHS medical director.

In my judgment the online article has the meaning “there were reasonable grounds and at the date of publication of the online article there continued to be reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”. The reasons for finding reasonable grounds to suspect are the same as those set out above. The reason for finding that the meaning is “continue to be reasonable grounds” is because, for very similar reasons to those considered in Flood v Times Newspapers, the reasonable reader would consider that the continued publication meant that those reasonable grounds to suspect continued to exist.

For the reasons set out above I determine that the broadcasts had the meaning “there were reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery” and “there were reasonable grounds and at the date of publication of the online article there continued to be reasonable grounds to suspect the Claimant of carrying out fraudulent activity while running Harbottle Surgery”.