The meaning of a published statement is at the core of a defamation claim. It influences the degree of harm caused and, ultimately, the degree of damages payable (if any). Usually, only the meaning of the statement complained of is assessed, but following a recent preliminary ruling of the High Court, the meaning of a republication of the primary statement may also be determined when the claimant relies upon it to establish serious harm.
Ex-Liverpool and Crystal Palace defender, Mamadou Sakho, is currently suing the World Anti-Doping Agency (WADA) for defamation. In 2016, Sakho was suspended for 30 days for taking a fat-burning substance that was allegedly on WADA’s banned list of substances. On appeal, UEFA ruled that it was not clear from the list whether the substance was banned in the first place, overturning the ban and clearing Sakho from liability.
Following UEFA’s ruling, WADA’s PR officer sent emails to the Guardian and the Daily Telegraph justifying its findings, as well as the decision not to appeal UEFA’s ruling. The Guardian and the Daily Telegraph each then published an article republishing the words complained of in the emails sent by WADA (the republications).
Sakho brought a defamation claim against WADA in relation to the emails, but (crucially) did not sue the newspapers in relation to the articles. He did, however, seek to rely upon the republications in relation to serious harm and damage.
At the preliminary hearing earlier this year, the court determined the objective meaning of the words Sakho complained of. Unusually, as part of that hearing, WADA argued that the court should also determine the meaning of the republications, as well as the primary offending statement (the emails). Sakho argued that, as he had not brought a separate cause of action in respect of the articles, there was no basis for determining the meaning of them.
The court agreed with WADA and gave a ruling on the meaning of the articles as well as the emails. The emails both bore meanings which included the allegation that Sakho had been guilty of taking a prohibited performance-enhancing substance. By contrast, the meaning attributed to each of the articles included that Sakho had been absolved of taking a prohibited performance-enhancing substance. The court held that the meanings of the republications were relevant because Sakho had relied upon them to establish serious harm. WADA sent the emails to four journalists, whereas millions had viewed the press articles.
In reaching its conclusion, the court noted that CPR PD 53B states that ‘in a defamation claim… the court may determine the meaning of the statement complained of’. Importantly, however, the court ruled that the Practice Direction did not preclude the meaning of a republication from also being determined as a preliminary issue.
WADA, as a publisher, may be on the hook for the republication of the material by a third party by way of additional damages. This is important because only four people saw the emails, but millions viewed the articles. The difference in the level of harm caused and damages payable could therefore be substantial.
This ruling also concerns the Chase level meanings for an alleged defamatory statement. Level 1: accusing someone of guilt; Level 2: alleging there are reasonable grounds to suspect someone of guilt; Level 3: alleging there are grounds to investigate. In this case, WADA’s emails were found to bear a Level 1 meaning, whilst the republications of the words complained of bore much less serious meanings when read in the context of the articles as a whole. The level of meaning will determine to what extent a defendant can rely on the defence of truth. The more serious the level of meaning, the more evidence is needed to plead it.
WADA will now try to defend the claim on the grounds that what they published was true, in the public interest or that it did not cause serious harm to Sakho.
As the meanings of the articles were held to be substantially lower than those attributed to the emails, this is likely to have a significant bearing on the level of the damages (if any) awarded for the republication of the words complained of in those articles.
This decision is likely to be of interest to all PR representatives who are required to pass comment to the press on a particular story. It serves as a warning that statements provided to journalists can attract a defamation claim and the republication of their statement to a much wider audience through press articles can be relied upon in relation to serious harm, even where the resulting article bears a less serious meaning than the PR’s original statement.
Sakho was granted permission to appeal the meanings of the articles. The Court of Appeal is due to hear the appeal by 2 November 2020, and so it may be some time before the implications of this decision become clear.
This article has been co-written with Laurence Nelson, a trainee solicitor in the corporate team.