A High Court decision from Monday of this week, following a preliminary issue hearing caught my attention when I noted that it contained several interesting points on the subject of “reference” as it applies in a claim for defamation.

First, a recap.  In order for a claim based in defamation to be successful, there are a number of elements that need to be established.  Reference, that is, identification of the claimant through the publication of the defamatory statement, is one of them.

Claimants must prove that the words complained of were published about them, i.e. reference was made in the article to them.

In many cases this will be straightforward but as can be seen from the recent decision in Sir James Dyson and Ors v Channel Four Television Corporation and Anor [2022] EWHC 2718 (KB), there are exceptions to this rule.

The claimants in this case, Sir James Dyson and two subsidiary companies from the Dyson group of companies, brought proceedings against Channel Four Television and Independent Television News.

The claim centered on a news item broadcast on Channel 4 News in February 2022 concerning alleged abuse at ATA Industrial, a Malaysian company that formerly made Dyson products until their contract was terminated following a final audit which uncovered evidence of serious issues.

The claimants alleged that the broadcast bore the defamatory meaning that they were all complicit in the abuse and torture of the factory workers.

As is now commonplace in defamation proceedings, it was decided that a trial of preliminary issues should take place which in this case was to consider the issue of reference, and to an extent defamatory meaning.

In submissions, the claimants told the court that viewers would be led to assume that because he is the face of the company, Sir James Dyson must know everything that goes on in all aspects of the corporation.

In addition, any reference to Dyson would be taken to refer to all Dyson companies including the two claimant companies.

The defendants rebutted this claim, acknowledging that although Sir James Dyson was identified, it was not in a way that could be considered defamatory.

Moreover, they argued that since the two claimant companies were not named, and no additional information was provided to lead a reasonable viewer to identify them as the relevant corporate entities, they were not able to establish reference.

In his ruling, Mr Justice Nicklin agreed with the Defendants and determined that the two subsidiary companies could not establish reference as neither was specifically identified in the broadcast as the relevant entities out of all those included in the wider group structure.

He held that contrary to the assertions of the claimants, a mere reference to the Dyson group could not be held to identify two specific companies that formed part of that group.

Further, the judge said no grounds were put forward by the Claimants upon which it could be said that viewers of the broadcast would have had additional knowledge that would have rendered them able to identify those two specific companies as being the ones responsible for carrying out the necessary operations in Malaysia.

As to Sir James Dyson himself, Nicklin J. held that even though Sir James was referred to by name and pictured in the broadcast, no reasonable reader could consider that he was in any way directly responsible for the day-to-day management of the Malaysian manufacturer.

In his ruling he stated: “Only a reader that was hopelessly naïve about the way in which global companies like Dyson operate could consider that a single person, its founder, had day-to-day management responsibility for what happened in a manufacturing plant that supplied its products.”

As such, the broadcast was incapable of being defamatory of him.

This is an interesting consideration of the principles of reference as they apply to both corporate and individual claimants.  The judgment is a helpful reminder that the establishment of reference is not a simple tick box exercise.  Importantly, it demonstrates the need to be precise in the use of language when serious allegations are being made against a specific company or person.

But the upside is that if journalists decide to make serious allegations against a company or individual, by taking care to identify the correct culprit, they have no need to fear a legal threat from a third party who has no actual involvement in the allegation under review.