This blog post has been contributed by Dr Carol Brennan Module Convenor for Tort law.
Besides negligence, the law on libel and slander is the most frequently litigated and publicised area of tort law. Defamation is not currently included in our London syllabus – mainly because it is such a big and complex topic that in some institutions it comprises a module on its own.
Cases often involve public figures or celebrities, whose behaviour may be tantalising to the public and hence newsworthy. ‘The Lost King’ is a feature film recounting the truly amazing 2012 discovery by an amateur archaeologist of the burial site and remains of King Richard III, who died in Leicester following the Battle of Bosworth Field in 1485. A defamation action began in respect of the film, which purported to be a true representation of the discovery. In Taylor v Pathe, Baby Cow and Coogan [2024] EWHC 1475 (KB) the claimant, Mr. Taylor, was a university academic who became involved in the search and eventual discovery of the king’s burial. His defamation action was based upon the portrayal of him in the film, which Taylor alleged made him appear ‘misogynistic’ and ‘weasel-like’. One of the defendants was Steve Coogan, a well-known British comedian, actor and film maker.
The three basic requirements of an action in defamation are that a statement must be published, of a defamatory nature, which is untrue.
There is of course extensive case law and statute on these elements. The Taylor case turned on what is meant by the ‘defamatory nature’ of a statement. When this aspect is disputed by the defendant, it is likely to be tried by a High Court judge as a preliminary issue, before the full action goes to trial. If the statement is found not be defamatory, then there is no point in expending time and money proceeding with considering defences such as truth.
To pass this first threshold of the action, the judge must determine as follows:
- The ‘consensus requirement’: the statement in question must have a meaning which would tend to lower the claimant in the eyes of right-thinking people generally.
- The ‘threshold of seriousness’ – the imputation must be one that could have a substantially adverse effect on the way that people would treat the claimant.
Note that the above is decided on a hypothetical basis with the judge standing in for the imagined ‘right-thinking’ member of the public. It is not necessary to prove that the publication ever had such an effect in reality.
In Taylor it was not possible to focus on any one particular statement or words, but the portrayal of the claimant needed to be evaluated in the context of the film as a whole, where he was portrayed by an actor speaking lines written by the defendants.
His Honour Judge Lewis concluded as follows: ‘The character of Mr Taylor was portrayed throughout the Film in a negative light. At no point was he shown in a way that could be described as positive, or even neutral. Whilst an individual scene may not in itself cross the threshold of seriousness, taken together the Film makes a powerful comment about the claimant and the way he conducted himself when undertaking a senior professional role for a university. The poor way in which he was depicted as behaving …was contrary to common shared values of our society and would have been recognised as such by the hypothetical reasonable viewer.’
The case was thus scheduled to proceed to trial however, as often happens, the parties then reached a financial settlement. Further, the producers agreed to insert a message at the beginning of the film announcing that portrayals of real individuals contained elements of fiction.
The legal travails of ‘The Lost King’ reveal the way that defamation actions can operate, with the judge making a subjective assessment of the effect of a publication as a whole, as a preliminary issue, followed by a settlement between the parties. Viewing ‘The Lost King’ or digging deeper to read about it, will reveal a story much stranger than fiction!