Libel and Pornography
| Published date | 01 September 1995 |
| Date | 01 September 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02049.x |
| Author | Peter Prescott |
The
Modern Law Review
Libel
and
Pornography
Peter
Prescott*
[Vol.
58
Charleston
v
News Group Newspapers
Ltd’
illustrates the unsatisfactory state of
our law of defamation. The actual decision seems questionable even in terms of
traditional libel principles. In the events that happened, the decision was not
legally wrong, but those events should never have happened.
The plaintiffs were actors who played the part of a respectable married couple in
the popular soap ‘Neighbours.’ A manufacturer brought out a computer game in
which their well-known faces were superimposed on a pornographic picture. It
suffices to say that the resulting image conveyed suggestions of sado-masochism
and sodomy. This attracted the attention of the
News ofthe World;
the results were
all that were to be expected. The newspaper published the composite image under
a prominent headline. A causal reader might well think that the plaintiffs had
voluntarily engaged in pornographic activities. However, those who read the
article as a whole would appreciate that the plaintiffs were victims, not instigators;
indeed, it discussed the conduct of the computer game makers ‘in a tone of self-
righteous indignation.
’2
In our country the jury has been, since
1792,
the constitutional tribunal for
deciding whether a given publication is libellous or not. This rule (Fox’s Libel
Act) was introduced by Parliament because it did not trust the judges to do the job.
It is, of course, well settled all the same that the judge has to decide if the libel is
capable of bearing a defamatory meaning. This is a contradiction (and a subversion
of the will of Parliament) unless we regard it as no more than a safeguard against
perverse verdicts, in which case it is quite proper. It is not a requirement imposing
a double test for what is defamatory; the one lay, the other judicial. For my part,
I
would have expected a jury to have awarded a good round
sum;
nor would
I
have
regarded such a verdict as perverse. We shall soon see how, in the instant case,
nobody’s job was done by nobody.
The case seems to have been pleaded on the basis that readers, or some of them,
would draw the inference that the plaintiffs were willing participants in a
pornographic photograph. The defendants secured an interlocutory ruling
requiring a preliminary issue to be decided by a judge alone; namely, whether the
matter complained of taken in its proper context was capable of bearing the
defamatory meanings alleged. The judge held that it was not, and the Court of
Appeal and House of Lords agreed.
It is, of course, absurd to suppose that the millions of readers of the
News ofthe
World,
some hurried, others attentive, will all take the same meaning out of the
same item; nor did the House of Lords
so
suppose.
As
Lord Nicholls noted3:
One reader, whose interest
has
been
quickened by
an
eye-catching headline or picture, will
pause and read
an
article. Another reader, with different interests or less time, will read the
headline and pass on, leaving the article unread.
The plaintiffs therefore argued that, out of the very large number of persons who
saw the item, some, no doubt a minority but collectively amounting to many
*QC,
8
New Square,
Lincoln’s
Inn.
1
[1995]
2
WLR
450
(HL).
2
per
Lord Bridge,
at
p
452.
3
Atp456.
752
0
The
Modem Law Review
Limited
1995
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