In one of the first findings of malice by a literary critic in many years, the High Court has upheld Dr Sarah Thornton’s claim for libel and malicious falsehood against Telegraph Media Group.  Lynn Barber’s highly critical review of Thornton’s book, Seven Days in the Art World, published in the Daily Telegraph, contained in particular two statements alleged by Thornton to be false and defamatory.  The Court found that Barber either knew that these statements were false, or was recklessly indifferent as to their veracity, thereby defeating a defence based on an offer of amends which Thornton did not accept.  The Court awarded Thornton £65,000 in damages, as well as payment of her legal costs.

The defamatory review

Thornton’s book, Seven Days in the Art World, included an acknowledgement setting out the names of persons she had interviewed in writing her book, including Lynn Barber.  In her review of the book for the Daily Telegraph published on 1 November 2008, Barber denied having been interviewed, stating, “I gave her an interview? Surely I would have noticed?”  This became the subject of the libel claim.  Barber’s review also stated that Thornton practises “‘reflexive ethnography’, which means that her interviewees have the right to read what she says about them and alter it.  In journalism we call this ‘copy approval’ and disapprove.” This became the subject of the claim for malicious falsehood.

Soon after reading the review, Thornton contacted Barber and subsequently the Daily Telegraph in order to set records straight and requesting an apology.  Thornton had in fact interviewed Barber, and this was evidenced by an extensive email chain between the two writers, by contemporaneous notes Thornton had taken during the interview, and by Barber’s own diary, in which she had written “New Yorker journo who has been pursuing me for weeks rang about the Turner Prize and I was mildly helpful but snotty.”  Furthermore, there was no evidence to suggest that Thornton allowed any right of copy approval.

On 3 April 3009, the Daily Telegraph made a qualified offer of amends in respect of the allegation concerning the absence of an interview.  Thornton did not accept this, as she was convinced at this point in time that Barber had in fact known that her allegations were false, and that she sought to discredit the book because it also contained a critical portrayal of Barber.  Some ten months after Barber’s review had been published, and after repeated requests from Thornton for a correction, the Daily Telegraph printed an apology in a form not previously offered to Thornton.  This stated that Thornton had in fact interviewed Barber and expressly apologised to Thornton in this respect, but did not apologise in respect of the allegation of copy approval, although it did clarify Thornton’s position as to reflexive ethnography.

The legal proceedings

Thornton issued proceedings against the Daily Telegraph on 16 June 2009 and, subsequent to a series of procedural hearings, Mr Justice Tugendhat handed down a reserved judgment on 26 July 2011 which upheld Thornton’s claim for libel and malicious falsehood.  

Under section 4 of the Defamation Act 1996, an offer of amends which is made to an aggrieved party, but not accepted, can provide a defence to defamation proceedings.  However, the defence will be rebutted if the aggrieved party proves that the defendant knew, or had reason to believe, that the statement in question was false and defamatory of the aggrieved party.   Tugendhat J held that the Daily Telegraph’s offer of amends was defeated by the malice behind the review, and therefore could not provide a defence to libel.  The Court considered that Barber knew that her review contained untruths, and the judge had “no hesitation in reaching the alternative conclusion that (if she did not know it was false) she was reckless, that is indifferent as to whether it was true or false.”

The Court also found that while the newspaper had made an apology ten months after the publication of the review in question, the apology was limited to the allegation in respect of the interview.  In addition, the apology was not offered promptly, such that it counted for much less than it would have done, had it been made sooner after publication of the review.  Accordingly, the Court awarded Thornton damages of £65,000, which if apportioned would be attributed as £50,000 to the libel claim and £15,000 to the malicious falsehood claim.  The Daily Telegraph was also ordered to pay Thornton’s costs, mostly on an indemnity basis.

Comment

While an offer of amends will normally satisfy the Court, in this case the late apology, the general treatment of Thornton following the book review, and the evidence of the author’s malice all combined to persuade the Court that an offer of amends was not sufficient.  In particular, the judgment examined Barber’s credibility at length, in the context of her other actions surrounding the review.  As Tugendhat J said: “The malice that I have found on the part of Ms Barber is a serious aggravating factor.”  He also found that the newspaper’s response to Thornton’s claims was a further aggravating factor: “In ordinary language she was fobbed off.”

It is understood that the Telegraph Media Group is looking to appeal the decision; developments in this case will be followed with interest.

Case: Sarah Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

For the full decision, please click here.