Dr. Sarah Thornton v Telegraph Media Group Ltd
| Jurisdiction | England & Wales |
| Judge | SIR CHARLES GRAY |
| Judgment Date | 12 November 2009 |
| Neutral Citation | [2009] EWHC 2863 (QB) |
| Date | 12 November 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHJ/09/0886 |
[2009] EWHC 2863 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Charles Gray
Sitting as a High Court Judge
Case No: IHJ/09/0886
Mr Justin Rushbrooke (instructed by Taylor Hampton) for the Claimant
Mr David Price (instructed by David Price Solicitors and Advocates) for the Defendant
Hearing dates: 20 th October 2009
Approved Judgment
The issues on the application
The issues which I have to decide on arise in the context of an application by the Claimant to strike out the defence of fair comment in a libel action brought by her against the publishers of a review of a book written by the Claimant. The question raised by the application is whether there is a real prospect of success for the defence of fair comment in circumstances where, according to the argument of the Claimant, firstly, the review contains statements of fact rather than comment and, secondly, those facts are said to constitute misstatements.
The Parties
The Claimant, Dr. Sarah Thornton, is the author of a book entitled Seven Days in the Art World ("the Book"). According to the flyleaf of the Book it consists of a series of seven fly-on-the-wall narratives based on seven different days covering events in the contemporary art world.
The Defendant is Telegraph Media Group Limited, which publishes The Daily Telegraph both in printed form and on its dedicated website.
The Book Review
The book review with which this Action is concerned was published in the issue of The Daily Telegraph for 1 November 2008. It appeared on page 28 of the Saturday edition of the newspaper. The review remained on the Telegraph website from the beginning of November 2008 until around late March or early April 2009. The author of the review was Ms Lynn Barber, who is herself an author. She has not been joined as a Defendant in the action.
Dr. Thornton complains of only part of the article. It is, however, necessary, for reasons which will become apparent, to set out the whole of the review. I have italicised those parts of the review which are the subject of Dr. Thornton's complaint.
" Seven Days in the Art World by Sarah Thornton: review
Confronted with reflexive ethnographic research on the art market, Lynn Barber isn't buying
Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of "ethnographic research", which she defines as "a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds". She also claims that she practices "reflexive ethnography", which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this "copy approval" and disapprove.
Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn't want to add to. And although she lists all four Turner jurors from my year (2006) among her interviewees, it is obvious from the text that only one gave her any inside information, and a very partial account at that. He seems to have forgotten one particularly sensitive encounter he had with Sir Nick Serota at a judging meeting.
Thornton's seven "days" are seven chapters, some of which feel like years, set in different areas of the art world: a Christie's auction, an art criticism seminar at the California Institute of the Arts, Basel Art Fair, the Turner Prize, Artforum magazine, a visit to Takashi Murakami's studios and the 2007 Venice Biennale. The chapters on the CalArts seminar and Artforum are unreadably dull – though I was amused to learn that Artforum went through a period when it suffered from "the wrong kind or unreadability". Nowadays it seems to have attained the right kind or unreadability.
Her account of a 2004 Christie's auction in New York contains some interesting snippets about what sells best. Paintings sell better than sculpture because they are portable and "easily domesticated", though they have to be small enough to fit into the average Park Avenue lift. Blue and red paintings sell better than brown ones, cheerful ones better than glum ones; female nudes better than males. Collectors dislike anything that has to be plugged in and presumably flee in horror at the idea of something like Sarah Lucas's Two Fried Eggs and a Kebab, which requires new fried eggs every day. Collectors, it seems, are quite a timid bunch.
But the whole business of auctioning contemporary art has been blown apart by the recent Damien Hirst sale. In 2004, the period Thornton writes about, there was still an unwritten rule that auction houses did not encroach on galleries by selling new work, but the time gap between sale and resale was narrowing. Hirst first cut out the middle man by selling the contents of his Pharmacy restaurant at auction in 2004, but it was still second-hand work. Recently, he made the final jump to selling new work, and we are still waiting to see what the effect will be on dealers.
It is typical of Thornton's approach that she talks to auctioneers, collectors, art historians, academics and critics before she finally gets round to meeting an artist. She chooses the prolific and fashionable Takashi Murakami and visits his various studies in New York and Japan, where she finds teams of assistants literally painting by numbers, having started the day with ten minutes of communal callisthenics. Murakami is, predictably, a fan of Andy Warhol and confides, "Warhol's genius was his discovery of easy painting". But, in business terms, Warhol was an amateur compared to Murakami. Having redesigned Louis Vuitton's trademark monogram print in multi-colours, Murakami now insists on having a Louis Vuitton boutique in his shows. He calls it "my urinal" which, Marc Jacobs of Louis Vuitton hastens to explain, does not mean that he p—es on it but is referring to Marcel Duchamp's iconic work.
I wouldn't be sure. The art world is full of p— and Thornton seems prepared to swallow any amount of it. Equipped with reams of earnest questions, she lacks the basic journalistic tool of scepticism, and seems to accept whatever anyone tells her at face value. She also suffers from that odd New York Times tic of believing that all facts, any facts, are equally important – thus, when interviewing an art consultant called Philippe Ségalot, she solemnly records "We both decide on fish carpaccio and sparkling water." Is this relevant? Would we read his remarks differently if he'd chosen, say, prosciutto and Evian? In journalism we call this "padding" – heaven knows what you call it in ethnographic research."
The article was accompanied by a photograph. No complaint is made of either the photograph or the caption.
Dr. Thornton's Complaint
The defamatory meanings attributed on behalf of Dr. Thornton to the article are three in number:
i) That [she] had dishonestly claimed to have carried out an hour-long interview with Lynn Barber as part of her research for Seven Days in the Art World, when the true position was that she had not interviewed Ms Barber at all, and had in fact been refused an interview.
ii) That [she] had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as "copy approval".
iii) That [she] had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.
Dr. Thornton frames her claim not only in libel but also in malicious falsehood. Detailed particulars both of falsity and of malice are set out in the Particulars of Claim. Nothing, however, turns on the claim in malicious falsehood. I shall therefore say no more about it. Both compensatory and aggravated damages are claimed but nothing turns on them for present purposes.
The Telegraph defence
The defence of fair comment is pleaded at paragraph 7:
"Further or alternatively, the passage of the article relating to reflexive ethnography, in so far as it is defamatory of the Claimant, is comment. The comment is based on true or sufficiently true facts. The comment is one that an honest person could hold on the basis of the facts. The subject matter of the comment is a matter of public interest, namely the Book, reflexive ethnography and/or the Claimant's practice of reflexive ethnography.
The meaning sought to be defended as comment
7.1 The Claimant's practice of reflexive ethnography is comparable to copy approval in journalism which is disapproved of by journalists."
There follow the facts on which the Defendant asserts the comment was based. Those facts consist for the most part of quotations from passages in the Book from p.255–257. They include an account by Dr. Thornton of the practice called "reflexive ethnography" and of the manner in which she uses that technique in her writing. These particulars also include words from p.xvii of the Introduction: "Each story is based on an average of 30–40 in-depth interviews and many hours of behind-the-scenes 'participant observation'. Although usually described as 'fly-on-the-wall', a more accurate metaphor for this kind of research is 'cat on the prowl', for a good participant observer is more like a stray cat. She is curious and interactive but not...
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Thornton v Telegraph Media Group Ltd
...court on a number of occasions. It is the subject of a judgment of Sir Charles Gray dated 12 November 2009, Neutral Citation Number: [2009] EWHC 2863 (QB). I gratefully adopt from that judgment parts of what follows by way of background and introduction to this case. I myself gave an ex te......