LAW REPORT : Broadcast words capable of being defamatory

Gillick v British Broadcasting Corporation and another; Court of Appeal (Lord Justice Neill, Lord Justice Evans and Lord Justice Millett) 19 October 1995

The words "But after you won that battle . . . there were at least two reported cases of suicide by girls who were pregnant" when spoken by a another participant in a live television broadcast to Mrs Victoria Gillick, a well-known campaigner whose action to prevent doctors giving confidential advice on contraception to girls under 16 had succeeded before the Court of Appeal in 1984, were capable of bearing the defamatory meaning that Mrs Gillick was, by pursuing that campaign, morally responsible for the girls' deaths.

The Court of Appeal by a majority dismissed an appeal by the defendants, the BBC and Mrs Susan Pearce, and affirmed the decision of Sir Michael Davies, sitting as a High Court judge on 4 March, who ruled in Mrs Gillick's favour on a preliminary issue in her libel action.

The action was brought after Mrs Gillick and Mrs Pearce took part in a BBC programme called The Garden Party on 27 July 1989. Their discussion concerned the work of Brook Advisory Centres, over the 25 years since the first one opened in 1964, in providing young single women and girls with contraceptive advice. Mrs Pearce's verdict was that they had "done a very good job" in helping reduce teenage pregnancies. Mrs Gillick's view was that they were a "total disaster" and that her legal campaign, which succeeded before the Court of Appeal but which failed in the House of Lords the following year, had done more to reduce teenage pregnancies.

Mrs Pearce then said: "But after you won that battle . . . there were at least two reported cases of suicide by girls who were pregnant." Mrs Gillick claimed these words were libellous and meant she had caused or was morally responsible for the death by suicide of at least two young girls. The defendants did not seek to justify the words as having been true; but they argued that in any case they did not mean that Mrs Gillick was culpable.

Andrew Caldecott QC (Judith Long, Shepherds Bush) for the defendants; Mrs Gillick appeared in person.

Lord Justice Neill said the actual meaning of the words complained of had yet to be decided: the judge's decision was on the question of law as to whether the words were capable of bearing the meaning alleged. In considering that issue, the following principles were relevant:

1) The court should give the words the natural and ordinary meaning they would have conveyed to the ordinary reasonable viewer watching the programme once.

2) The hypothetical reasonable viewer was neither naive nor unduly suspicious. He could read in an implication more readily than a lawyer but he was not avid for scandal.

3) The court should be cautious of an over-elaborate analysis of the material.

4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to a learned article.

5) In deciding what impression the material complained of was likely to have on the hypothetical reasonable viewer, judges were entitled, if not bound, to have regard to the impression it made on them.

6) The court should not be too literal in its approach.

7) A statement was defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.

In this case the defendants accepted that the reasonable viewer could infer there was a clear link between Mrs Gillick's success in the Court of Appeal and the "suicides". But they argued the programme did not suggest she was "culpable".

His Lordship was unable to accept that. It would be for the jury to decide what the words complained of actually meant in their context. At this stage, his Lordship was satisfied that within the spectrum of meanings of which the words were capable was the meaning that Mrs Gillick was in some sense to blame for the girls' deaths and therefore morally responsible to a culpable degree.

Lord Justice Evans concurred.

Lord Justice Millett dissented. Mrs Pearce had accused Mrs Gillick of having been tragically mistaken, but that was all; and though deeply wounding it was not defamatory.

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