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Law column: To aggregate or not to aggregate, that is the question

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A recent case from Trinidad and Tobago looked at whether or not two or more different statements made at different times by the same person, can be aggregated by a claimant to give rise to a defamation claim when, taken separately, the statements alone weren’t enough for a claimant to bring a claim.

Though not binding on the English Courts, the case offers a look at an interesting topic and sets down principles that may provide useful guidance in future.

The position on aggregation prior to this case wasn’t very clear, with the leading principles coming from two separate cases decided six months apart.

In the first case, Grapelli, the Judge said that under no circumstances can a number of statements be combined to make a defamation claim.  Fast-forward six months to the second case, Hayward, and the same judge ruled to the contrary.

This most recent case centred on four articles published by Trinidad Express Newspapers Ltd. On 17 August 2007 in Central Trinidad, the police shot and killed four men in a car and a woman in her home,

The paper reported on the incident at the time and published two articles. The two articles did not name any of the police officers but were highly critical of the officers. The allegation was that the shooting was in fact a revenge killing by the police.

An inquest into the shooting took place in June 2009, at which point the paper published a third article reporting on the inquest which named the nine police officers involved. The inquest concluded that there was no wrongdoing on the part of the officers.

The fourth and final article was published, which again named the nine police officers, and reported the findings of the inquest. The fourth article included statements of the victims’ relatives which insinuated some injustice.

The police officers issued a claim for defamation stating that naming them in the third and fourth articles meant that they were identified as the police officers in the first and second articles and was therefore defamatory of them.

At the initial hearing, the court said that the police officers could not aggregate the four articles to prove that they had been defamed. Although the first two articles were highly defamatory, at the time that they were published, they were not identifiable.

The police officers appealed and were successful. As I’m sure you can guess, the paper then launched a further appeal.

The paper argued that the subsequent statements could not be relied on by the police officers because a claim in defamation is complete at the moment the statement is published, i.e. when the first two articles were published – they were defamatory but did not identify the officers.

The court in this instance said that there was no need to address the conundrum posed by Grappelli and Hayward. Different facts in different cases will result in different answers.

What this case does potentially give us however, is a steer. The suggestion is that, for aggregation to happen, when the subsequent statement is published, there must be, in the mind of the ‘reasonable reader’ a “sufficient nexus, connection or association” between the statements so that one statement is defamatory and another statement identifies the person being defamed. Whether this has happened is a question of fact.

Another point raised is that the statements must be taken as a whole – aggregation can work both ways. Therefore, if the subsequent statement aims to take away the defamatory ‘sting’, then the aggregation of the statements may well not be defamatory.

As with most things, the court has said that cases must be decided on their own facts. The Judge stated that, by the very nature of defamation “neat conceptual solutions do not always provide satisfactory answers to the endlessly varied fact-sets with which judges…have to wrestle”. As such, there are still no hard and fast rules or guidelines on whether claimants will be able to combine a number of statements made at different times by the same person, to demonstrate a cause of action in defamation.

So what does this all mean for journalists? If you are planning to write a series of articles about a particular topic that could contain potentially defamatory allegations, it is important to consider the meaning of the articles not just as individual pieces, but as a collective group.

As we have seen in this case, failure to consider this point runs the risk of a judge allowing an aggregated meaning to be pleaded. Although remember, this case is not binding on the English Courts!

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