Berkoff v Burchill - Defining the Scope of Defamatory Statement - Case Study Example

Case Note: Berkoff v Burchill and another [1996] 4 All ER 1008 I. Parties to the Case Defendants Julie Burchill and Times Newspapers Ltd. brought this appeal before the Court1. The respondent of the appeal is Steven Berkoff2. The original action for damages for libel in this case was brought by Steven Berkoff, an actor, director and writer who is well known for his work on stage, screen and television3 against defendants Julie Burchill4, journalist and writer who at the material times retained to write articles about the cinema for the Sunday Times5, and the Times Newspapers Ltd.6, the publishers of the Sunday Times7. II. Procedural history The case was original was heard by the High Court presided over by Sir Maurice Drake8. The issue to be resolved under the original case was whether or not the statement made by the defendant is “capable of being defamatory.”9 The defendants Miss Julie Burchill and the Times Newspaper Ltd then applied for an order that seeks the dismissal of the action filed by Mr. Berkoff in the event where the statements subjected to the complaint is later on found to be not defamatory.10 On the evaluation of the facts of the case and the arguments presented by the parties, Sir Maurice Drake “dismissed the defendant’s application, but he gave the defendants leave to appeal.”11 Defendants then brought the case on appeal to the appellate court on the questions as to the meaning of the word “defamatory’ and as to the nature of an action for defamation12. The case is now In the Court of Appeal, Civil Division under the Judges Neill, Millet and Phillips13. III. Material Facts of the Case In the 30 January 1994 issue of the Sunday Times, Miss Burchill, in her review of the film “The Age of Innocence” wrote that the “film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people…”14 Nine months after Miss Burchill made that comment on the looks of Mr. Berkoff, she again used Mr. Berkoff as a kind of analogy when she described the character of the “Creature” in the film “Frankenstein”15. According to Miss Burchill “The Creature is made as a vessel for Waldman’s brain, and rejected in disgust when it comes out scarred and primeval. It’s a very new look for the Creature – no bolts in the neck or flat-top hairdo – and I think it works; it’s a lot like Stephen Berkoff, only marginally better-looking.”16 Mr. Berkoff was not happy with the analogy made by Miss Burchill and filed a complaint immediately after the publication of the second article17. The primary submission was that calling a person “hideously ugly” tends to expose him to ridicule18. The subsidiary submission was that describing Mr. Berkoff as “hideously ugly” will cause him to be shunned by others19. IV. Question(s) and Issue(s) of law According to Neill LJ, there are two points that must be resolved under this case first, the meaning of the word defamatory and second the nature of the action for defamation20. In resolving the case at bar, the judges of the Court of Appeals proceeded to tackle the issues to determine whether or not defining the scope of defamatory statement falls within the jurisdiction of the Court. It also needs to resolve what should be left to the jury to decide upon. V. Appellants Arguments The appellants of this cases relied on the arguments that the definition of tort of defamation is hinge on the idea that injury was caused to the reputation of the appellee21. According to the arguments presented by the counsel for the appellants, the fact that “a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory” and must therefore be considered as immaterial to the case. The counsel for the defendants relied on the words of Lord Atkins in the case of Sim v. Stretch [1936] 2 All ER 1237 at 1242 where it was stated that even though, as a matter of duty to safeguard liberty, the juries has the freedom to award damages for injury to reputation, such duty is undermined “when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs.”22 The counsel for the appellants illustrated that an allegation that a person is suffering from certain types of diseases can be considered as defamatory because this could cause some aversive reaction from people around him. However he argued that a distinction must be made between the statements that somebody “is physically unwholesome and an allegation that the person is physically aesthetically unpleasing.” 23 The counsel for the appellant argued that the “shunned or avoided” test couldn’t be applied without qualification. If calling somebody “hideously ugly” is to be considered as an actionable wrong, the counsel for the appellant expressed that this could create a dangerous precedence that may blur the boundaries between issues of facts and the law.24 The contention of the appellant through its counsel is that when the statement “hideously ugly” is considered as capable of being defamatory, such definition must now be applied in all cases. VI. Decisions of the Court The Appellate Court dismissed the appeal. VII. Reasons for the decision On the issue of scope of present application, Neill LJ said that “the question of fact: libel or no libel, is a matter for the jury. But the court has the jurisdiction to rule that as a matter of law, words are incapable of being defamatory.”25 He is of the opinion that the appeal should be dismissed and the case be heard in court for the jury to decide. Regarding the definition of the word defamatory, Neill LJ noted that based on previously decided cases, it could be said that “words may be defamatory, even though they neither impute disgraceful conduct to 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 man’s standing among other people do not found an action for libel or slander.”26 Phillips LJ agrees with Neill LJ that the appeal should be dismissed. He stated that both beauty and ugliness are in the eyes of the beholder,27 thus, he does not agree that a right minded person would “shun another” just because a third person happens to dislike his appearance. 28 However, on the arguments of the appellants’ counsel where it was stated that he could not accept the arguments of the appellant regarding the question of law presented29. According to the arguments of the appellant, if the statement describing the person as “hideously ugly” is considered defamatory, such definition must be applied to all cases so that there will be no distinction between the technical issues of law and technical issues of fact30. Phillips LJ said that the actually context and circumstances in which the words are used should be considered in determining whether or not such use is indeed defamatory31. Phillips LJ said “where the issue is whether words have damaged a plaintiff’s reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se.”32 Millet LJ on the other hand, is not convinced that this case should be dismissed. He argued that Mr. Berkoff is a director, actor and writer and such work does not prescribe physical beauty as a qualification33. Although he agreed with both Neill LJ and Phillips that drawing the line between mockery and defamatory should be done by the jury, he said that he is not persuaded that the case at bar could be properly put “in the wrong side of the line”.34 Millet LJ is of the opinion that a decision that will make it an actionable wrong to call a person “hideously ugly” tantamount to an “unwarranted restriction on free speech.”35 He believes that people should be allowed to poke fun at each other “without the fear of litigation”.36 VIII. Descriptive Ratio Decidendi The decision of this case is anchored on the two aspects, first, the question of law on the definition of the word defamatory and second, the nature of the action. Based on the facts of the case and reasons behind the decisions of the judges, the following should serve as a guide for futures cases that may have similar facts as the case at bar. a. As to the question of jurisdiction in deciding whether or not an event, statement or act constitute an actionable wrong which must be heard by a jury, Neill LJ said that “the question of fact: libel or no libel, is a matter for the jury but the Court has the jurisdiction to rule that as a matter of law, words are incapable of being defamatory.” 37Clearly, the jury is given the right to try on facts but it is up to the court to decide which statements or actions can be considered as libellous or defamatory. b. In determining whether or not the word is defamatory, Neill LJ said that “words may be defamatory, even though they neither impute disgraceful conduct to 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.” 38 c. “Statements that bring the person into hatred, ridicule, or contempt by reason of some moral discredit…but also if it tends to make the plaintiff be shunned and avoided…39 [Yousossoupoff v Metro-Goldwyn-Mayer pictures Ltd. [1934] 50 TLR 581 at 587 cited in the case of Berkoff] constitute defamation40. Read More