Hoo-ver you talking about? Identification in defamation claims

The Court of Appeal considered the correct test to apply in considering whether allegedly defamatory material refers to the Claimant in Dyson v Channel Four [CA-2022-002241].

The claim

Sir James Dyson and two British Dyson companies, Dyson Technology Limited and Dyson Limited sued Channel Four and ITN for libel arising from a  report broadcast on Channel Four news. The report concerned claims of abuse and exploitation in factories in Malaysia run by a company called ATA, where Dyson appliances were made, and the way in which Dyson had dealt with the matter.

A preliminary issue was ordered as to whether the broadcast referred to the two companies. The judge at first instance found that it did not as the ordinary viewer would understand the allegations to be targeted at the corporate entity within the Dyson group that had a contract with ATA and the entity that was responsible for the PR operation. As ATA operated in Malaysia and the broadcast featured a Dyson PR spokesperson in Singapore, the judge found that the British companies were not referred to in the broadcast.

The appeal

The companies appealed on the basis that the judge applied the wrong test and their conclusion resulted from an over-elaborate analysis of the broadcast. On 25 July 2023, the Court of Appeal handed down judgment for the appellants.

It is a key ingredient of defamation cases that the claimant(s) must be identified in the statement(s) complained of. This can be done either through the words themselves (intrinsic reference) or by reference to particular facts known to the hypothetical reasonable reader or viewer acquainted with the claimant(s) (extrinsic reference or reference innuendo).

In this case, the first instance judge's analysis of the broadcast was found to be unduly refined: the hypothetical Channel Four viewer would not have carefully considered Dyson's corporate structure, nor which specific entities had a contract with ATA. The broadcast referred to the "iconic British brand" and the hypothetical viewer would understand the report to refer to the claimants.

The case will now continue in the High Court.

Comment

This case provides an interesting reminder of the different tests applied by courts when considering how a hypothetical reasonable viewer would interpret a publication as to the meaning of statements or, as considered here, identification of the claimants.

The Court of Appeal also provided a warning to parties agreeing to litigate a preliminary issue as to intrinsic reference only as opposed to both ways of identification, as this might result in no saving of time and cost. Further, the judges expressed doubt as to the desirability of preliminary issues on reference generally, which have not been proven valuable, unlike preliminary issues as to meaning.

Parties should carefully consider at an early stage how the proceedings can be managed efficiently.