A preliminary issue decision out of the High Court last month in the case of retail magnate and Premier League football club owner Mike Ashley and Times Newspapers Limited has given an interesting insight into the effect of the often-misunderstood “repetition rule” in determining the meaning of a defamatory statement.
In the summer of 2020, several articles were published as part of a Times investigation into a company called Sport Mobile, a mobile phone service provider, and the person responsible for running it, John Shepherd. In undercover recordings obtained by the newspaper, Mr Shepherd had made claims about having altered mobile phone records for several clients, including the Claimant, Mr Ashley, during a high-profile commercial dispute that he had been involved in during 2017.
Mr Ashley complained about his portrayal in the articles and issued proceedings against the publisher in January 2021.
The parties agreed to a trial of preliminary issues to determine, amongst other matters, what the natural and ordinary meaning of the various articles was. Mr Ashley contended that readers would have understood the articles to mean that he was guilty of instructing Mr Shepherd and his company deliberately to conceal evidence of mobile phone records pertinent to the 2017 case.
Taking their own shot on goal as it were, the publisher disagreed, instead insisting that the reasonable reader would have recognized the articles to be about Mr Shepherd and his “boasts” concerning the services that his company could provide rather than alleging any wrongdoing on the part of Mr Ashley.
In support of their argument on meaning, lawyers for Mr Ashley drew attention to what they considered a bit of an own goal on the part of the publishers, contending that they had failed to consider the effect of the “repetition rule” on the statements made in the articles.
The repetition rule is a long-established principle in defamation law. The rule provides that simply adding words like “alleged”, “claimed” or indeed, “boasted” is unlikely to be sufficient to shield a publisher from liability in relation to publishing defamatory allegations made by others. It will often be the case that by reporting a defamatory statement, a publisher will in fact give the accusations far greater credibility and wider circulation than they would have otherwise had.
In considering the meaning of the Articles, Mr Justice Saini agreed that the repetition rule was engaged on the basis that the articles reported directly upon statements made by Mr Shepherd. However, he also noted that despite the arguments advanced by the claimant, the rule could not be applied “mechanistically” i.e., it is not a foregone conclusion that reporting directly upon the accusations made by a third party will equate to an accusation made by the publisher themselves.
The judge determined that whilst the meaning of the articles was not as serious as Mr Ashley had contended, they were defamatory on the basis that they were, and would have been recognized to be, pieces of serious investigative journalism concerning matters in the public interest. The articles therefore carried a still serious meaning that there were grounds to suspect Mr Ashley of seeking assistance from Mr Shepherd in avoiding disclosure of materials that would have been detrimental to his position in the 2017 commercial dispute.
Whilst far from the final whistle, the opening half of this case has provided a useful examination of the repetition rule specifically in the context of meaning, something which at times can be about as easy to understand as the finer points of the offside rule.
It’s a difficult and complex topic, but perhaps a good way of looking at it is to think of this as a game of two halves, with a red card being shown to the practice of including words such as “allegedly” when reporting allegations made by others. What this decision has shown is that trying to change the meaning of words in this way will not be enough to save you from being sent off, in libel terms at least!