Dear John;
The main point of Thornton v Telegraph Media Group Ltd [2010] EWHC 1414
(QB) (16 June 2010)
http://www.bailii.org/ew/cases/EWHC/QB/2010/1414.html of course is the
finding at the end that there is a "seriousness" threshold that needs to
be crossed before a statement can be defamatory. This seems
unexceptionable to me (though I am by no means a regular frequenter of
the Galapagos Islands Division)- in fact I would have thought it was
dealt with perfectly adequately by the existing formulations including
the one that seems to be most authoritative in Australia, "causing
right-minded people to think less of someone" (because such people do
not alter their views unless an allegation is sufficiently "serious").

However, the point you raise is very interesting. The discussion seems
to move in the direction of "fragmenting" the tort of defamation into
"personal" and "business" and to some extent applying different rules to
"business" defamation. The judge doesn't go quite so far as calling it a
"different tort" but he comes close. What I found fascinating is that in
this connection he twice cites a text reference to Radio 2UE Sydney v
Chesterton [2008] NSWCA 66 at [19]. But this Australian State decision
was later appealed to the High Court, in Radio 2UE Sydney Pty Ltd v
Chesterton [2009] HCA 16. Here are a few comments I made to my students
on this case earlier this year:

Some comments of the NSWCA had been seen as suggesting that simply
“injuring someone’s business interests” might be regarded as a
possible test for defamation, even where that had no connection with
their “reputation”. The majority judgment (French CJ, Gummow, Kiefel &
Bell JJ) clearly states that any suggestion of this sort is
unacceptable. The tort of defamation concerns reputation. Someone’s
reputation may be lowered by imputations that they are a “bad person” in
their moral character; but it may also be lowered by imputations that
they “do a bad job” in their commercial activities.

"10 It is not in dispute that persons may be defamed in their
business reputation. The common law has for some time recognised that
words may not only reflect adversely upon a person's private character,
but may injure a person in his or her office, profession, business or
trade . This may be so where the words reflect upon the person's
fitness or ability to undertake what is necessary to that business,
profession or trade. But in each case the injury spoken of is that to
the person's reputation."

So whichever aspect is being addressed, the issue always remains one of
“reputation”, not of some more broadly defined damage to business
interests. (If a claim is made simply alleging statements which harm
“business interests”, then that claim must be made in the tort of
“injurious falsehood”; it is not a claim in defamation- see [11].)
The HC affirmed very clearly that “disparagement of reputation… is the
essence of an action for defamation”- at [32].
In particular, the approach of the CA in these proceedings was
disapproved of. In Chesterton the NSWCA had suggested that, while
reputation was the issue, different “standards” should be applied to the
question of reputation in a business defamation case, to that which
applied in a case of defamation based on “character” alone. The HC
majority in Chesterton said that this was a wrong approach. The basic
issue is whether the plaintiff's “standing in the community, or the
estimation in which people hold the person, has been lowered”, and that
is the issue whether the aspect of “standing” is based on their
character or their competence- [36]. The standard can be expressed to be
that of the “ordinary reasonable person” or the “ordinary decent
person”- [40], both phrases implying that the hypothetical person
whose views are being considered generally shares the standards of the
overall community.

"60 The Court of Appeal in [the earlier decision of] Gacic was in
error in requiring a jury to be directed that the general test as to
whether an imputation is defamatory is not to be applied in cases
involving defamation in the way of a plaintiff's business or
professional reputation. The reasons of the majority of the Court of
Appeal in this case do not provide additional support for such an
approach. The general test for defamation is relevant to all
imputations which are said to have injured a plaintiff's reputation in
some respect. The likelihood that the ordinary reasonable person may
think the less of a plaintiff because of the imputations is assessed by
reference to that person's general knowledge and their knowledge of
standards held by the general community, as they may apply to what is
said about the plaintiff. Because such a person can be expected to
apply the standards of the general community, he or she may be described
as "decent". The standards are not limited to those of a moral or
ethical kind. That a particular imputation may not require the
application of a community standard does not render the general test
inapplicable. The inquiry as to the effect upon reputation remains. In
a case where a secondary defamatory meaning is alleged, which may
require knowledge of particular facts within a business or profession,
those special facts may be pleaded and led in evidence in support of a
true innuendo. There is no warrant for the application of the knowledge
or attitudes of a hypothetical referee other than those of the ordinary
reasonable person."

In the end the majority, having viewed the directions of the trial judge
as a whole, took the view that she had given appropriate emphasis to the
need for “reputation” to be considered, and the standpoint of the
“ordinary reasonable person”, for the directions to be satisfactory,
and upheld the findings of the jury that the remarks were defamatory.

Some of this may be relevant to what Tugendhat J said.

Cheers
Neil


Neil Foster
Deputy Head of School & LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/
>>> John Murphy <john.murphy@manchester.ac.uk> 01/06/11 7:00 PM >>>
Cannot remember if the following case has ever been discussed. And
laggard that I am, i have only just coem across it. I'm not sure what I
make of it and I wonder what people who have come across and read it
made of the analysis of the putative sub-tort of "business defamation"?
see onwards from para [37].

What does it do to defamation generally? What does it do to malicious
falsehood?

best wishes,

John Murphy