In one of the first findings of malice by a literary critic in many years, the High Court has upheld Dr Sarah Thornton's claim for libel and malicious falsehood against Telegraph Media Group. Lynn Barber's highly critical review of Thornton's book, Seven Days in the Art World, published in the Daily Telegraph, contained in particular two statements alleged by Thornton to be false and defamatory. The Court found that Barber either knew that these statements were false, or was recklessly indifferent as to their veracity, thereby defeating a defence based on an offer of amends which Thornton did not accept. The Court awarded Thornton £65,000 in damages, as well as payment of her legal costs.
The defamatory review
Thornton's book, Seven Days in the Art World,
included an acknowledgement setting out the names of persons she
had interviewed in writing her book, including Lynn Barber. In her
review of the book for the Daily Telegraph published on 1
November 2008, Barber denied having been interviewed, stating,
"I gave her an interview? Surely I would have noticed?"
This became the subject of the libel claim. Barber's review
also stated that Thornton practises "'reflexive
ethnography', which means that her interviewees have the right
to read what she says about them and alter it. In journalism we
call this 'copy approval' and disapprove." This became
the subject of the claim for malicious falsehood.
Soon after reading the review, Thornton contacted Barber and
subsequently the Daily Telegraph in order to set records
straight and requesting an apology. Thornton had in fact
interviewed Barber, and this was evidenced by an extensive email
chain between the two writers, by contemporaneous notes Thornton
had taken during the interview, and by Barber's own diary, in
which she had written "New Yorker journo who has been pursuing
me for weeks rang about the Turner Prize and I was mildly helpful
but snotty." Furthermore, there was no evidence to suggest
that Thornton allowed any right of copy approval.
On 3 April 3009, the Daily Telegraph made a qualified
offer of amends in respect of the allegation concerning the absence
of an interview. Thornton did not accept this, as she was convinced
at this point in time that Barber had in fact known that her
allegations were false, and that she sought to discredit the book
because it also contained a critical portrayal of Barber. Some ten
months after Barber's review had been published, and after
repeated requests from Thornton for a correction, the Daily
Telegraph printed an apology in a form not previously offered
to Thornton. This stated that Thornton had in fact interviewed
Barber and expressly apologised to Thornton in this respect, but
did not apologise in respect of the allegation of copy approval,
although it did clarify Thornton's position as to reflexive
ethnography.
The legal proceedings
Thornton issued proceedings against the Daily Telegraph
on 16 June 2009 and, subsequent to a series of procedural hearings,
Mr Justice Tugendhat handed down a reserved judgment on 26 July
2011 which upheld Thornton's claim for libel and malicious
falsehood.
Under section 4 of the Defamation Act 1996, an offer of amends
which is made to an aggrieved party, but not accepted, can provide
a defence to defamation proceedings. However, the defence will be
rebutted if the aggrieved party proves that the defendant knew, or
had reason to believe, that the statement in question was false and
defamatory of the aggrieved party. Tugendhat J held that the
Daily Telegraph's offer of amends was defeated by the
malice behind the review, and therefore could not provide a defence
to libel. The Court considered that Barber knew that her review
contained untruths, and the judge had "no hesitation in
reaching the alternative conclusion that (if she did not know it
was false) she was reckless, that is indifferent as to whether it
was true or false."
The Court also found that while the newspaper had made an apology
ten months after the publication of the review in question, the
apology was limited to the allegation in respect of the interview.
In addition, the apology was not offered promptly, such that it
counted for much less than it would have done, had it been made
sooner after publication of the review. Accordingly, the Court
awarded Thornton damages of £65,000, which if apportioned
would be attributed as £50,000 to the libel claim and
£15,000 to the malicious falsehood claim. The Daily
Telegraph was also ordered to pay Thornton's costs, mostly
on an indemnity basis.
Comment
While an offer of amends will normally satisfy the Court, in
this case the late apology, the general treatment of Thornton
following the book review, and the evidence of the author's
malice all combined to persuade the Court that an offer of amends
was not sufficient. In particular, the judgment examined
Barber's credibility at length, in the context of her other
actions surrounding the review. As Tugendhat J said: "The
malice that I have found on the part of Ms Barber is a serious
aggravating factor." He also found that the newspaper's
response to Thornton's claims was a further aggravating factor:
"In ordinary language she was fobbed off."
It is understood that the Telegraph Media Group is looking to
appeal the decision; developments in this case will be followed
with interest.
Case: Sarah Thornton v Telegraph Media Group Ltd [2011] EWHC
1884 (QB)
For the full decision, please click here.
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The original publication date for this article was 03/08/2011.