Norman v Future Publishing Limited - Essay Example

Norman v Future Publishing Limited The case Norman v. Future Publishing Limited was heard by the English Court of Appeal in 1999. The appellant, opera singer Jessye Norman appealed a decision by the lower court. The initial complaint filed by Norman was founded on a claim in damages where she alleged that the respondent, Future Publishing Limited had used words which had a defamatory meaning. The substantive complaint arose out of words published by the defendant in a classic CD Magazine. The publication in contention were words used in jest over the appellant getting stuck in swing doors and being advised to exit sideways. The appellant’s complaint was against the following statement in the article which referred to the release of her CD Salome: “While her Salome is released this month on Phillips, it is still hard to envisage the grand, statuesque 49-year-old as the libidinous adolescent on stage stripping off the seven veils. This is the woman who got trapped in swing doors on her way to a concert, and when advised to release herself by turning sideways, replied” Honey, I ain’t got no sideways.”1 The appellant had pleaded in her originating process that the words used in the article, particularly “Honey I ain’t got no sideways” when taking on their ordinary meaning meant to imply that she had used language that was: “(1) (a) vulgar and undignified and/or (b) conformed to a degrading racist stereotype of a person of African-American heritage; alternatively (2) The plaintiff had been guilty of patronising mockery of the modes of speech stereo-typically attributed to certain groups or classes of black Americans, and was therefore guilty also of hypocrisy.”2 The appellant’s original complaint went as stated in the originating Statement of Claim went on to allege that the publication of the words used had the result of placing the appellant into “ridicule, mockery and contempt.” 3 It was also alleged that the words used in the publication had caused serious injury to the appellant’s “personal and professional reputation and in any event to her feelings.”4 Lord Buckley, the judge at first instance struck out Norman’s Statement of Claim, essentially ruling that the words used, when taking together with the entire article could not be construed in the manner pleaded by Norman. Norman then appealed to the Court of Appeal against the lower court’s decision under Order 82, Rule 3A of the Rules of Supreme Court, 1994 which provides that any party to a defamatory action may apply to a judge in chambers for an order “determining whether or not the words complained of are capable of bearing” certain meanings or the meanings complained on in the originating process.5 The Order goes on to provide that if the judge upon hearing such an application agrees that the words complained of are not capable of “bearing the meaning” alleged in the pleadings he is at liberty to “dismiss the claim or make such other order as he deems just and fair.6 The Court of Appeal went on to state that although appeals under this Order are typically discouraged, when the result of the order is to dismiss the action altogether as it did in Norma’s case, or to take away from the jury the consideration of the meaning of the words used, the Court of Appeal will be more willing to “interfere.”7 Since this is apparently what took place before Buckley LJ in respect of the plaintiff’s claim the Court of Appeal was willing to hear the appellant’s complaint. In considering the substantive grounds of appeal the Court of Appeal opined that it was firmly settled that courts ought to give contentious words their “natural and ordinary meaning as received by the “ordinary, reasonable, fair-minded reader” of the publication.8 According to the ruling in Charleston v New Group Ltd. [1995] 2 A.C. 65 the Court of Appeal went on to add that in order to do justice to the words complained of they are required to be read in the full context of the totality of the article in which they appear. The appellant argued that the words complained of had been capable of “bearing the meanings pleaded” since the words “attributed to” Norman were “ungrammatical.”9 Moreover, the words were “degrading” and rose to the level of “racist stereotype” of the manner in which white people typically mocked black people of deep South origin in the USA and the so-called complimentary biographical sketch made it clear that the appellant was a black woman from the deep South. Relying on the Court of Appeal’s decision in Berkoff v Burchill [1996] 4 All E.R. 1008, the appellant argued that it was sufficient to substantiate a claim of defamation if the words used exposed “the plaintiff to ridicule.” The appellant cited Neill J in the case of Berkoff v Burchill [1996] 4 All E.R. 1008 as follows: “It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct of the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a mans standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.”10 The Court of Appeal however, drew the appellant’s attention to the repeated discussions by all the justices, where it was agreed throughout that the words complained of should be read together with the entire article and not in isolation. The Court of Appeal pointed out that dissenting justice Millet LJ had opined that: “The line between mockery and defamation may sometimes be difficult to draw. When it is it should be left tot he jury...”11 The dissenting judge went on to state however, that “people must be allowed to poke fun at one another” which having to be subjected to litigation.12 At the end of the day the “perceived intention of the” author together with the “importance of interpreting the words” in all the circumstances were the determining factors.13 The appellant argued that although the article itself adapted a favourable approach to the appellant the defamatory meaning of the words complained off could not be lost on the average reader and that those words were so close to the borderline referred to in Berkoff v Burchill [1996] 4 All E.R. 1008 that they ought to be left to a jury. The respondent argued however that the meanings attribute to the words by the appellant were “far fetched and fanciful and could not be deemed as stereotyping. Even so, the respondent went on to argue that in reliance upon the case of Charleston v New Group Ltd. [1995] 2 A.C. 65 the words complained of were required to be read together with the entire article in which they appeared.14 Hirst L.J. agreed with the respondent holding that in respect of the words complained of: “They seem to me far fetched in the extreme, particularly because I do not think that the words reflect an African-American stereotype.”15 While agreeing that he had a bit more hesitation with respect to the meaning “vulgar” attributed to the words in the appellant’s pleadings, Hirst L.J. said again he is reminded of the practice of returning to the entire context in which the words were used. Since the article taking its entirety was flattering to the appellant, Hirst LJ agreed that the appeal should be dismissed. Peter Gibson L.J. took the approach that although withdrawing the meanings attributed to allegedly defamatory words was primarily a function for the jury the judge at first instance had a duty under Order 82 when called upon to determine whether or not the words were capable of bearing the defamatory meaning complained of “and if he concludes that they are not so capable, he must so declare.”16 Gibson L.J. pointed out the various attempts by the appellant through counsel to amend the pleadings so as to apply defamatory meaning to the words complained of. That in itself suggest that the only means by which the words used can be read as defamatory is by an over analysis and this runs counter to the ruling in Skuse v. Granada Television Ltd [1996] E.M.L.R. 278. Gibson L.J. went on to say that: “There it was said that the court should be cautious of an over-elaborate analysis of the material in issue. This court cited with approval what was said by Diplock L.J. in Slim v. Daily Telegraph [1968] 2 Q.B. 157 at 171, where it was emphasised that the meaning should be one gained by the reader as a matter of first impression.”17 Gibson J was adamant in his resolve that any “ordinary reasonable reader” would assign defamatory meaning alleged by the appellant to the words used in the article. Gibson L.J. went on to point out: “I cannot accept that that would be the meaning gained by the fair-minded reader in 1994, still less that Miss Norman, by the use of language attributed to her conformed to a stereotype of a black American which was degrading. That is out of keeping with the tenor of the article which, read as a whole, is distinctly complimentary to her.”18 Gibson stated that the article taken at its highest in favour of the appellant’s argument could only be regarded as making “gently fun” of the appellant. More over Justice Gibson agreed with the ruling of Hirst L.J.. May, L.J. in turn agreed with both justice Hirst and Gibson and the appeal was dismissed. Bibliography Berkoff v Burchill [1996] 4 All E.R. 1008 Charleston v New Group Ltd. [1995] 2 A.C. 65 Norman v Future Publishing Limited (1999) EMLR 325 Skuse v. Granada Television Ltd [1996] E.M.L.R. 278 Read More