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Published: Wed, 07 Mar 2018
Berkoff v Burchill and another  4 All ER 1008;  EMLR 139
Libel; newspaper article; meaning capable of being defamatory
The first defendant was a journalist and, at the time, a film critic for the Sunday Times, while the second defendant was the newspaper’s publisher. In one review, the first defendant described the claimant (among others) as being ‘notoriously hideous-looking’, and in another as “only marginally better-looking than the creature in Frankenstein”. The claimant sued for libel.
The claimant argued that the above statements were defamatory in that they exposed him to ridicule, or alternatively, they would cause others to avoid him. The defendants question the capability of the statements to be defamatory. The trial judge found in favour of the claimant, so the defendants appealed.
The Court of Appeal dismissed the defendants’ appeal. Firstly, it held that the while one cannot satisfactorily define the word ‘defamatory’, words that do not imply disgraceful conduct or lack of business efficiency can still be defamatory if they cause the claimant to be subject to ridicule, contempt or exclusion from society. However, insults not attacking a person’s standing in society cannot constitute libel (the borderline is hardly definable). Secondly, claiming that someone was ugly was different from attacking someone based on his physical condition, where the latter were statement of fact. Calling a person ugly was a subjective perception and no right-minded person would exclude another purely based on the subjective perception of a third person. Thus, the statement as to the claimant’s ugly appearance was not defamatory. Thirdly, however, the defendants’ statements exposed the claimant to ridicule in light of the actual words used and the actual circumstances in which they were used. Calling someone ugly may be an expression of an opinion (and thus not defamatory) or it may be said with the intention to expose a person to ridicule (and thus defamatory) – in the present case it was the latter.
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