Tayler v HarperCollins Publishers Ltd

Hearing date: 28 June 2022

Approved judgment

I direct that official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

In 2021, HarperCollins Publishers Limited published Perversion of Justice: the Jeffrey Epstein Story. The author, Julie K. Brown, is an award-winning investigative journalist employed by the Miami Herald. The book exposes the scandal of the 2008 plea bargain which allowed the wealthy financier and paedophile, Jeffrey Epstein, to serve modest prison time for his crimes. It was, readers are told, Ms Brown's relentless pursuit of the Epstein story that led directly to the reopening of the case, Epstein's arrest on 6 July 2019 and subsequently the prosecution of Ghislaine Maxwell. The inside front cover claims:

“ Perversion of Justice reveals how Epstein came to run a global sex-trafficking pyramid scheme with impunity for years, targeting vulnerable teens, often from fractured homes, and then turning them into recruiters.”

Emmy Tayler is a British woman who is said in the book to have worked for Jeffrey Epstein and Ghislaine Maxwell in 2005. She is specifically named in connection with the abuse of a fourteen-year-old victim in 2005 who is referred to simply as Jane Doe 1. The book claims that Jane was recruited by another girl, Haley Robson, who had been instructed by Epstein that “the younger” the girls that she recruited for him “the better.” It then describes, at pages 13–14, the moment when Jane entered Epstein's Palm Beach mansion:

“Shortly thereafter, a silver-haired man with a long face and bushy eyebrows entered the kitchen, along with a young woman who appeared to be about Haley's age. His name was Jeffrey. The young woman's name, police would later learn, was Emmy Tayler. At the time, Tayler arranged Epstein's massage schedule and also worked as Maxwell's assistant. After the introductions, Tayler led Jane Doe 1 up a spiral staircase from the kitchen to a master bedroom and bath. Jane told the police she became anxious as Tayler put up a folding massage table and laid out a bunch of oils. ‘Jeff will be up in a minute,’ she told Jane. There has been nothing to suggest that Tayler was aware of what happened in the room nor that she participated in any sexual activity.”

The book recounts how, when Jane was alone in the room with Epstein, he instructed her to remove all of her clothes and straddle his back as he lay on his stomach. He then told her to climb down. He rolled over, dropped his towel, and exposed himself. He then began stroking his penis with one hand while fondling Jane's breasts with the other. He placed a vibrator between her legs. When he ejaculated, he ordered Jane to get dressed and paid her $300.

By this claim, Ms Tayler seeks damages and other remedies for libel. She asserts that her alleged involvement in arranging Epstein's massage schedule and in the abuse of Jane Doe 1 is demonstrably false. She says that she was not employed by Ms Maxwell in Florida in 2005 and she asserts that the 2006 police report into Jane Doe 1's allegation named another woman as the person who had shown the girl into the bedroom.

While the truth of the statements made about Ms Tayler is not in issue in this trial of three preliminary issues, it is only fair in this public judgment to make clear that the publisher accepts that Ms Tayler was wrongly named at page 13 as the young woman who led Jane Doe 1 to Epstein's bedroom in Palm Beach in 2005. It is the publisher's case that, once the mistake was identified, further distribution of the book was suspended on 7 August 2021. It also says that a corrected and re-printed paperback was published the following month and that amendments have been made both to the audiobook and e-book editions of the book. There was, however, no recall of unsold books that had already been sent to distributors.

On 22 March 2022, Nicklin J ordered that there should be a trial of the following preliminary issues: (i) the natural and ordinary meaning of the statement complained of; (ii) whether the statement complained of, in any meaning found, is defamatory of Ms Tayler at common law; and (iii) whether the statement complained of is, or includes, a statement of fact or opinion. Although no defence has yet been filed, the publisher has set out a statement of its case upon each of these issues.

(1) MEANING

Ms Tayler relies on some forty-six extracts from the book but the critical passage is that quoted at paragraph 2 above. She argues that the natural and ordinary meaning of statements made in the book is that:

“(1) The Claimant arranged Jeffrey Epstein's massage schedule in 2005 at a time when he was a prolific paedophile who regularly sexually abused underage girls under the guise of paying them to receive massages. On one occasion in 2005, when Epstein was aged in his 50s, the Claimant led a 14-year-old child – ‘Jane Doe 1’ — to a bedroom in Epstein's Palm Beach residence. The Claimant set up a massage table and oils and left the girl alone in the master bedroom, having told her, and knowing that, Epstein would be joining the girl in the room shortly.

(2) The child was subsequently seriously sexually assaulted by Epstein. The Claimant thereby knowingly facilitated the paedophilia of a notorious child abuser, or there are strong grounds to suspect that she did so.”

The publisher denies that the statements bear the meaning asserted by Ms Tayler. It argues that reasonable readers of the book would understand the statements to have the following meaning:

“In 2005 the Claimant was a young woman who worked as an administrative assistant to Ghislaine Maxwell, a close associate of Jeffrey Epstein, and also arranged massages for Epstein which, on one occasion, according to a later police report, involved the Claimant showing an unnamed girl into a massage room at Epstein's Palm Beach mansion where, subsequently, behind closed doors and without the Claimant knowing about it, he proceeded to sexually abuse the unnamed girl who was also, it transpired, underage.”

THE PROPER APPROACH TO IDENTIFYING MEANING

In Koutsogiannis v. Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 W.L.R. 25, Nicklin J helpfully summarised the well-established principles applicable when determining meaning in a passage that was subsequently approved by the Court of Appeal in Corbyn v. Millett [2021] EWCA Civ 567, [2021] E.M.L.R. 19. Nicklin J observed, at [11]–[12]:

“11. The court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157.

12. The following key principles can be distilled from the authorities …

i) The governing principle is reasonableness.

ii) The intention of the publisher is irrelevant.

iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.

vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.

vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues' gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).

ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.

xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.

xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.

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