Out-Law News | 17 Jun 2010 | 3:52 pm | 3 min. read
Another part of Lynn Barber's Daily Telegraph review of a book on the art world may yet form the basis of a case, Mr Justice Tugendhat said.
Barber reviewed 'Seven Days in the Art World' by Sarah Thornton, a book that looked at the London art world at the peak of its bubble in 2007. Thornton claimed to be an expert in the sociology of culture and in ethnography.
Barber wrote disapprovingly of the techniques she believed Thornton had used in her book, which was composed of seven 'fly on the wall' stories.
"Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense," wrote Barber. "She describes her book as a piece of 'ethnographic research', which she defines as 'a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds'. She also claims that she practices '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."
'Copy approval' is the practice of allowing the subjects of stories to alter them after writing but before publication. While it is common in some sections of the celebrity press it is frowned on by serious journalists.
Thornton claimed that Barber's comments about copy approval were "an attack on Dr Thornton's integrity as a professional writer", her lawyers told the Court.
The Daily Telegraph asked the High Court to rule that the words were not defamation because they did not damage Thornton seriously enough. The High Court agreed.
Mr Justice Tugendhat recognised that amongst journalists the allegation that someone allowed subjects copy approval of their material would undermine their professional integrity. However, this was not the standard to be applied in deciding how badly someone's reputation was damaged.
"It is a feature of this case that Dr Thornton appears to share the view, expressed in the first paragraph of the words complained of, that giving copy approval is something to be disapproved of," he said. "But that does not take the case any further towards making this a libel. The fact that the two parties to an action may both be members of a section of society holding particular views does not relieve the court from the obligation to try the case by the standards of members of society generally."
"In the present case there is no suggestion that the need to apply the standards of members of society generally can be satisfied by putting forward a meaning such as disloyalty or hypocrisy," he said. "If read by itself, the first paragraph containing the copy approval allegation is not capable of being a personal libel. It is not capable of meaning that Dr Thornton had done anything which in ordinary language could be highly reprehensible, or reprehensible at all, or of bearing any meaning defamatory of Dr Thornton on a personal basis."
He said that it was not fair to compare the case with past ones dealing with dentists or sanitation, in which the consequences of the truth or falsehood of statements could have direct effects on individuals.
"I remain unable to see how [those cases] can be translated to the profession of writing, where professionals are free to write to different standards for different readerships. A journalist is free to make a living in the world of public relations," he said. "Absent a pleaded meaning such as hypocrisy, or a true innuendo, neither of which are pleaded in this case, I am unable to see how it can be defamatory of Dr Thornton to allege that she did not apply in her Book the standards of journalists relating to copy approval. Or if it might otherwise be, then it does not overcome the required threshold of seriousness."
A previous case involving Youssef Jameel and Wall Street Journal publisher Dow Jones established that a defamation allegation had to be serious enough to overcome a publisher's right to freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights.
Mr Justice Tugendhat said that the 'threshold of seriousness' contained in an academic publication's list of definitions of defamation should be changed. The word 'substantially' should be added, as should the phrase 'or has a tendency so to do'.
"I would consider that Jameel v Dow Jones requires that these definitions should be varied so as to include a threshold of seriousness," he said. "The word that would give effect to this by imposing the lowest threshold that might be envisaged is the word 'substantially'."
That definition would then read "the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do"," the judge said.
Barber's assertion in the book review that Thornton misleadingly claimed to have interviewed her can be the subject of the ongoing libel action, the Court said.