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The Law Column: Hot news from the Palace

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There was some interesting news from the Palace last week which readers will, I know, be anxious to hear.

But I must come clean and reveal that this column is not reporting on the latest developments from Buckingham or Kensington Palaces.  Rather, it’s about one of South London’s finest, Crystal Palace FC, and in particular, its star centre back, Mamadou Sakho.

It’s a complicated story, and it stemmed from a doping investigation in 2016.   The upshot was that Mr. Sakho was acquitted by UEFA of taking a prohibited performance-enhancing substance.

However, in August 2016 and again in April 2017, the World Anti-Doping Agency (WADA), in the form of WADA’s Senior Manager for Media Relations and Communications, despatched two emails, one to the Telegraph, and one to the Guardian.  The emails were seen by four people, though naturally, the subsequent articles were read by many more.

Mr. Sakho sued WADA on the basis of what he considered to be the defamatory content of the emails, asserting that they meant he was a drugs cheat.  As was his right, he chose not to sue the Telegraph or the Guardian.  The issue, however, was whether their articles had any relevance to his case against WADA with regard to “serious harm” and damages.

As usual, there was a preliminary hearing on meaning and these other issues.

As Mrs. Justice Steyn said in her judgment, the heart of the case was this:

“In a case such as this, where it is said that the primary publications were to four people, whereas the republications were published to millions, it is important to determine whether there is, as [WADA] contends, a stark difference in the level of gravity of the imputations conveyed by the republications compared to the primary publications”.

But the conundrum which faced the Court was that the claim raised a new and unique issue: the Judge said that there does not appear to be any precedent for determining the meaning of republished allegations (contained in the articles) which had not been sued on, unlike the original allegations (contained in the emails).

But despite this, the Judge decided that it was appropriate to determine the meanings of the articles because they were pertinent to whether “serious harm” had been caused to Mr. Sakho’s reputation by the emails.

After a detailed review of the facts and the law, the Court found that the meaning of both emails was that Mr. Sakho had been guilty of taking a prohibited performance-enhancing substance, and that the meaning of both articles was that the claimant had been absolved of taking a prohibited performance-enhancing substance.

The case will now continue and at trial, the Court will have to decide whether the defamatory meaning of the emails, despite the articles, caused serious harm to Mr. Sakho’s reputation; or conversely, whether the effect of the articles is that his reputation has not been seriously harmed.

This is all very interesting for lawyers, but does this development have any relevance for working journalists?

Well, as ever, it depends.  On the one hand, the facts of the case are very unusual, hence the Judge’s statement that no precedent had been found.  It’s not a scenario that’s likely to keep reporters and editors awake at night.

On the other hand, if journalists are ever faced with unusual facts such as in this case, the meaning of what they have written may well be determined by reference to the actions and publications of others, over whom they have no influence or control.

It just adds a whole new level of uncertainty to the process of understanding what words mean, and whether the reputation of the subject of the story has been seriously harmed.