Ware v Paddy French

Overview: paras. [1-6]

Legal Principles: paras. [7-13]

Meaning: paras. [14-25]

Fact/Opinion and defamatory tendency: paras. [26-30] Appendix: the Article

This is a trial of preliminary issues in a libel claim brought by the Claimant (“Mr Ware”) against the Defendant (“Mr French”) in relation to an article (“the Article”) written and published by Mr French in or around December 2019. The Article concerned the BBC’s Panorama programme of 10 July 2019, entitled Is Labour Anti-Semitic? (“the Programme”). Mr Ware was the presenter of the Programme and responsible for its content.

The Article was headed Political storm rages over BBC's "rogue" journalism. It is reproduced in an Appendix to this judgment with the addition of paragraph numbers (which I will use below). I will not summarise the Article beyond stating that the broad thrust is a complaint about the accuracy of what was said in the Programme about antiSemitism in the Labour Party and assertions of one-sidedness on the part of Mr Ware.

Mr Ware is a journalist and television producer. Mr French is a retired current affairs producer and editor of a blog Press Gang(www.press.ganguk.wordpress.com), which describes itself as being “an investigative website that exposes rogue journalists”.

There is no dispute that there was substantial publication of the Article in a number of ways, but the precise scale and nature of publication is for trial in due course. As I have said below, the Article also featured as part of the Pamphlet. In that form it was accompanied by another article entitled “Is the BBC Anti-Labour?”. I am satisfied that nothing in this additional text/article alters the meaning of the Article and say nothing further about it in this judgment.

On the material before me, there was publication of the Article in the following ways: (i) by inclusion of the Pamphlet in the free online magazine ColdType, which is published via the website coldtype.net; (ii) via the website press-gang.org (by way of a means of a hyperlink to the article on coldtype.net and by reproducing the article in full on press-gang.org itself); (iii) by sending the Pamphlet directly to a hundred or more senior managers and journalists at the BBC; (iv) by handing out copies of it to BBC staff as they entered and left Broadcasting House, the BBC's headquarters, on or about 8 December 2019; (v) by sending copies of the Pamphlet to employees of Channel 4

There are three issues for determination:

Although there were natural differences of emphasis, I did not detect any dispute between the parties on the law. The principles governing the determination of meaning are well-established and were summarised in Koutsogiannis v Random House GroupLtd [2020] 4 WLR 25 at [11].

Leading Counsel for Mr Ware also placed particular reliance on Charleston v NewsGroup Newspapers Ltd[1995] 2 AC 65at p.72 (Lord Bridge) and p.74 (Lord Nicholls) in relation to the relationship in the potential reader’s mind between a prominent headline and curative words later in the body of an article.

Leading Counsel for Mr French was right to submit that although political speech does not require special rules of interpretation, a political context nevertheless has an impact on the way in which the question of meaning must be approached. I accept that reasonable readers understand that political discourse is often passionate and is not as precise as, say, financial journalism. There is a particular need to avoid over-analysis when determining the meaning of political speech.

As to the distinction between fact and opinion, the relevant principles were again helpfully explained in Koutsogiannisat [16] to [17]. The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.The general guidance in Greenstein v Campaign against Antisemitism[2019] EWHC 281 (QB) at [30]-[37] was also relied upon by Mr French.

In Triplark v Northwood Hall [2019] EWHC 3494 (QB), in discussing the statutory honest opinion defence, Warby J observed that “the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion” (at [16]).

I am also conscious of the risk of “stifling the answer” to the fact/opinion question by deciding the issue of meaning first: British Chiropractic Association v Singh[2011] 1 WLR 133 at [32]. I accept that the questions are inter-related and the proper approach, particularly in this case, is to consider the issues together.

As to what is defamatory at common law, there was no dispute that a statement will be defamatory if it is one that "substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do": Lachaux v Independent PrintLtd [2019] UKSC 27 [2019] 3 WLR 18 at [9].

I approached this issue without first considering the pleaded meanings. I formed my own provisional impression, bearing in mind the overriding context, namely that this was a serious piece of political journalism on a matter of intense recent controversy in current affairs.

Although I found the skeletons and oral submissions of real value, ultimately I was not moved from the provisional view I had formed in reading the Article itself. I will provide my meaning at the end of this section. It largely coincides with the position of the Claimant. Detailed written arguments were presented by way of analysis of the detail in the Article (and dissection by paragraph numbers) but I found that this exercise, to some extent, moved me away from the position of the ordinary reader. I have avoided such a surgical approach. I will however set out each party’s case and the main points (but not all of them) that they made to me.

Mr Ware’s case is that the Article bears the following natural and ordinary meaning:

“…That [Mr Ware] is a rogue journalist who had engaged in dirty tricks by deliberately setting out to sabotage the Labour Party’s chances of winning the General Election by producing an edition of Panorama in which he dishonestly presented a biased and false portrayal of the case against the Labour Party for anti-Semitism.”

I was taken sequentially through the text and stress was placed on the following main points by Leading Counsel for Mr Ware:

Mr French’s pleaded case (as modified in a minor manner at the hearing before me) advanced the following competing meaning:

“(1)

That [Mr Ware] produced a television programme which was one-sided and strongly advocated the position that the Labour Party was anti-Semitic;

(2)

That, as a result, [Mr Ware] had engaged in rogue journalism”.

Leading Counsel for Mr French emphasised that the Article was directed at the “quality” of the BBC’s journalism in the Programme and was a piece of serious political journalism on an issue of substantial public interest. He made the following main points in support of the case as to meaning:

It was submitted on behalf of Mr French that, considering the Article as a whole, the essential message which a reasonable reader would take away is that (in Mr French’s opinion) the Programme – for which Mr Ware was in part responsible – was a onesided piece of journalism.

In my judgment, the meaning of the Article was essentially as pleaded by the Claimant but my own meaning is slightly modified:

“…That [Mr Ware] is a rogue journalist who had engaged in dirty tricks aimed at harming the Labour Party’s chances of winning the General Election by authoring and presenting an edition of Panorama in which he presented a biased and knowingly false presentation of the extent and nature of antiSemitism within the party, deliberately ignoring contrary evidence.”

I consider the points made by Leading Counsel on behalf of Mr Ware (summarised above at [17]) support this meaning and fairly reflect the language used in the Article. I note, in particular, §23 of the Article, where Mr Ware is said to have "purged his narrative" and "presented only those party members who conformed to his analysis of the problem, John Ware goes on to present highly one-sided accounts of alleged incidents of anti-Semitism".

I emphasise that this is the meaning I gather as a matter of overall impression. Also, as I said during oral argument, a reader would note in particular the focus in the Article on alleged misuse of statistics and testimony, and assertions of deliberate misrepresentation of such matters (“bending the truth to breaking point”). One cannot avoid the conclusion that the Article goes substantially beyond an accusation of general one-sidedness which one might encounter in political commentary of a journalist’s standpoint on an issue. The claimed knowing falsity of what Mr Ware has presented is a feature which stands out.

I also approach the Article on the basis that the reader will have read the strapline and heading as part of the overall reading experience and they are to be taken into account in determining meaning. The connection with “dirty tricks” and damaging election chances is clear.

I have not overlooked the fact that this was a work of political journalism on an important issue of public interest. However, Mr French went beyond merely expressing opinions and entered the territory of accusing Mr Ware of deliberate wrongdoing in selectively presenting one side of the story on the national broadcaster (a body with well-known duties of impartiality- which indeed are the subject of the references to Ofcom’s code in the Article).

Leading Counsel for Mr French argued that the statements in the Article are recognisable as comment, as distinct from imputations of fact. He submitted that the text sets out inferences, criticisms and observations about the Programme rather than factual contentions.

I reject that submission. In my judgment, the allegations conveyed statements of fact and not opinion. Claimed misrepresentation by presenting one side of a story for a particular purpose, and deliberate suppression of an alternative narrative were, in the context of the Article, plainly imputations of fact.

I also consider that in the context of the Article as a whole the accusation of “rogue journalism” was an imputation of fact. I agree with the submission on behalf of Mr Ware thatreaders did not conclude that he was a rogue journalist because he produced a one-sided television programme, they concluded that he was a rogue journalist because that is what the Article told them he was, as well as setting out evidence in support of that conclusion.

Finally, to accuse a journalist of behaving in the manner alleged is clearly defamatory at common law. The specific allegations made in relation to a broadcast journalist such as the Claimant are serious matters going to his reputation. I note that the accusation of “rogue journalism” is in any event accepted by Mr French as being defamatory.

The preliminary issues are determined accordingly.

Between :

Paddy French examines an extraordinary battle between the British Broadcasting Corporation and the Labour Party over a controversial programme about antisemitism, which Labour says was a deliberate attempt to sabotage its electoral prospects . . .

Political storm rages over BBC’s ‘rogue’ journalism

the dirty triCks eleCtion