The most basic of media law lessons would tell you that for a publication to be defamatory, it needs to make reference to the person of whom it is defamatory (among other things). This can be by naming them, picturing them, or giving enough details that the person can be identified by those who see or read the publication.

But what about so-called ‘innuendo reference’? This is where the publication does not reference the claimant specifically, but where readers with a knowledge of extraneous facts can ‘put two and two together’ and identify the person.

The recent case of Richard Millett v the Right Honourable Jeremy Corbyn MP involved a peculiar set of facts, but the principle has relevance for any publisher.

Mr Millett, the Claimant, is a blogger and commentator who writes on a number of subjects including anti-semitism and Israel.

In 2013, Mr Corbyn made a speech in which he referred to an earlier occasion where a speech had been given by the Palestinian Authority’s Ambassador about the history of Palestine and the rights of the Palestinian people. He then went on to allege that “silent Zionists” who were in the audience of that speech went up to the speaker and berated him afterwards. He stated that:

“They [the “Zionists”] clearly have two problems. One is they don’t want to study history and secondly, having lived in this country for a very long time, and probably all their lives, they don’t understand English irony either.”

Five years later, in August 2018, when Labour was under intense scrutiny for alleged anti-semitism within the party, a recording of the 2013 speech was made public for the first time. There was speculation as to who the alleged “Zionists” were. Mr Millett was named as one of the people Mr Corbyn had been referring to by the Times, the Guardian, Mail Online and on the BBC website (“the Articles”).

In September 2018 Mr Corbyn was interviewed on the Andrew Marr Show. In that interview, Mr Corbyn was shown a video of his 2013 speech, and then faced questions from Andrew Marr. Mr Corbyn went on to allege that the two people he was referring to were so disruptive (as he alleged they had been at a number of meetings) that the Police wanted to remove them, and that they “were really, really strong” on the speaker afterwards, to the point that it upset the Ambassador.

Neither the 2013 speech nor the Andrew Marr interview named Mr Millett. But, in a recent Judgment, it was decided that Mr Millett had successfully argued that there was an ‘innuendo reference’ to him, as those who had read the Articles would have understood that Mr Corbyn was referring to him when he spoke on the Andrew Marr Show.

The Judgment also ruled that the statements carried a defamatory meaning about Mr Millett. As this was a preliminary hearing of these narrow issues, the case still continues.

This Preliminary Hearing Judgment is a useful reminder that caution is required when looking at the issue of reference – it is not only details within the publication which matter, it is also those which are available to the public or a section of the public.

A potential claimant will be able to satisfy the ‘reference’ test if the information published, along with extraneous information, leads to their identification.

The message is clear: take extra care when writing a contentious article. Not naming the subject might not be enough to ensure it remains legally safe.