Telnikoff v Matusevitc

JurisdictionEngland & Wales
JudgeLORD JUSTICE LLOYD,LORD JUSTICE GLIDEWELL,LORD JUSTICE WOOLF
Judgment Date16 May 1990
Judgment citation (vLex)[1990] EWCA Civ J0516-7
Docket Number90/0472
CourtCourt of Appeal (Civil Division)
Vladimir Telnikoff
and
Vladimir Matusevitch

[1990] EWCA Civ J0516-7

Before:

Lord Justice Lloyd

Lord Justice Glidewell

Lord Justice Woolf

90/0472

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(THE HON. MR JUSTICE DRAKE)

Royal Courts of Justice

MR DESMOND BROWNE Q.C., instructed by Messrs Peter Carter-Ruck & Partners, appeared for the Appellant (Plaintiff).

MR EDWARD GARNIER, instructed by Messrs Bindman & Partners, appeared for the Respondent (Defendant).

LORD JUSTICE LLOYD
1

In this case we are concerned with a dispute between two Russian emigr'es. It raises an important question as to the scope of the defence of fair comment in an action for libel.

2

On 13th February 1984 the Daily Telegraph published an article written by the plaintiff, Mr Vladimir Telnikoff. He was then employed by the B.B.C. Russian Service as a probationer. The article was in many ways prophetic. The main thrust of the article was the importance of distinguishing between Russia on the one hand and communism on the other. The article traced the history of Russian broadcasting since the early 1970s, and continued:

"But still, after three decades of gradually becoming aware of the significance of Russian language broadcasting, I believe its general concept has never been set right. It continues to reflect the fatal confusion of the West, which has yet to clarify to itself whether it is threatened by Russia or by Communism. We fail to understand that Communism is as alien to the religious and national aspirations of the Russian people as those of any other nation".

3

The article then makes a different point. I set out the next three paragraphs in full in order to put the matter in context. But it is the first of the following paragraphs which has given rise to all the trouble:

"This confusion further manifests itself in the policy of recruitment for the Russian Service. While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian speaking national minorities of the Soviet empire, and has something like 10 per cent of those who associate themselves ethnically, spiritually or religiously with Russian people. However high the standards and integrity of that majority there is no more logic in this than having a Greek Service which is 90 per cent recruited from the Greek-speaking Turkish community of Cyprus.

When broadcasting to other East European countries, we recognise them to be enslaved from outside, and better able to withstand alien, Russian, Communism through our assertion of their own national spirit and traditions. However, this approach, leaves room for flirting with Euro-communism or 'socialism with a human (non-Russian) face' as a desirable future alternative, and well suits the Left in the West.

Resisting the ideological advance of Communism by encouraging anti-Russian feelings is of less obvious value with a Russian audience. Making 'Russian' synonymous with 'Communist' alienates the sympathetic Russian listeners. It stirs up social resentment in others against the Russians. Making those words synonymous also makes sympathy for Russia into support for the Communist system."

4

So the plaintiff is making two separate, and at first sight unrelated, points. He draws a distinction, as I have said, between the Russian threat and the communist threat. But he also draws a distinction between Russia on the one hand and the national minorities of the Soviet empire on the other. He criticises the Russian Service of the B.B.C. for treating Russia as synonymous with communism. But he also criticises the service for employing too many recruits from among the ethnic minorities of the Soviet Empire, and not enough from among those who "associate themselves ethnically, spiritually or religiously with Russian people".

5

The defendant is Mr Vladimir Matusevitch. He is a Russian Jew, who, like the plaintiff, suffered persecution in Russia before coming as an emigré to this country. Like the plaintiff, he too was employed at the relevant time by the Russian Service of the B.B.C. But he had never met the plaintiff. He was muchincensed by the plaintiff's article. He regarded it as racialist, and anti-semitic. He wrote a letter to the Daily

6

Telegraph which was published on 18th February 1984 as follows:

"Sir—Having read 'Selecting the Right Wavelength to Tune in to Russia' (Feb 13) I was shocked, particularly by the part on alleged inadequacies of the B.B.C.'s Russian Service recruitment policies.

Mr Vladimir Telnikoff says: 'While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian-speaking national minorities of the Soviet empire'.

Mr Telnikoff must certainly be aware that the majority of new emigres from Russia are people who grew up, studied and worked in Russia, who have Russian as their mother-tongue and have only one culture—Russian.

People with Jewish blood in their veins were never allowed by the Soviet authorities to feel themselves equal with people of the same language, culture and way of life. Insulted and humiliated by this paranoiac situation, desperate victims of these Soviet racialist (anti-Semitic) policies took the opportunity to emigrate.

Now the B.B.C.'s Russian Service, as well as other similar services of other Western stations broadcasting to Russia, who are interested in new staff members (natives), employ those people in accordance with common democratic procedures, interested in their professional qualifications and not in the blood of the applicants.

Mr Telnikoff demands that in the interest of more effective broadcasts the management of the B.B.C.'s Russian Service should switch from professional testing to a blood test.

Mr Telnikoff is stressing his racialist recipe by claiming that no matter how high the standards and integrity 'of ethnically alien' people Russian staff might be, they should be dismissed.

I am certain the DAILY TELEGRAPH would reject any article with similar suggestions of lack of racial purity of the writer in any normal section of the British media.

One could expect that the spreading of racialist views would be unacceptable in a British newspaper".

7

The plaintiff took great exception to the defendant's letter, and in particular to the statement that he, the plaintiff, was advocating the introduction of blood testing and the dismissal of ethnically alien members of the B.B.C. Russian Service. On 12th March the plaintiff's solicitors wrote demanding an apology. On 18th April they issued a writ, and served a statement of claim the following day. The natural and ordinary meaning pleaded in paragraph 4 was that the plaintiff:

  • "(i) Advocated the introduction of blood-testing as part of the recruitment process at the BBC Russian Services, in order to maintain racial purity.

  • (ii) Advocated the dismissal of employees of the BBC Russian Service, on racial grounds.

  • (iii) Had made statements inciting racial hatred and/or racial discrimination.

  • (iv) Was a racialist and/or an anti-semite and/or a supporter and/or proponent of doctrines of racial superiority or racial purity".

8

By his amended defence the defendant pleaded fair comment on a matter of public interest. He did not seek to justify. In reply, the plaintiff alleged that the defendant was actuated by express malice.

9

The case came on for trial before Drake J. in May 1989. The plaintiff appeared in person. At the conclusion of the plaintiff's case, there was a submission of no case to go to the jury, on the ground (1) that any reasonable jury properly directed would be bound to uphold the defence of fair comment and (2) there was no evidence of express malice. The judge upheld the submission. There is now an appeal to this court.

10

Fact or Comment?

11

The first question is whether the words complained of were capable of being understood as a statement of fact or facts, rather than comment: see Turner v. M.G.M. Pictures Ltd [1950] 1 All E.R. 449 per Lord Porter at 461. If they were so capable, then it would have been the judge's duty to leave that question to the jury.

12

Mr Browne submitted that there were three distinct allegations of fact contained in the words complained of, namely,

13

(i) that Mr Telnikoff had demanded that the management of the B.B.C.'s Russian Service should switch from professional testing to blood test;

14

(ii) that Mr Telnikoff had claimed that no matter how high the standards and integrity of "ethnically alien" Russian staff might be they should be dismissed;

15

(iii) that Mr Telnikoff had spread racialist views, and was a racist and an anti-Semite.

16

Mr Garnier, for the defendant, submitted that the words complained of were comment. He particularised the comment, in accordance with the recent decision of this court in Control Risks Ltd v. New English Library Ltd [1990] 1 W.L.R. 183 as follows:

"The plaintiff's opinions regarding the personnel employed by the BBC Russian Service and the recruitment policy of that station are shocking for their racialism and, if taken to their logical conclusion, could lead to the selection or even dismissal of broadcasters on grounds of race or ethnic origin rather than on the basis of professional qualifications".

17

The judge was in no doubt that, reading the letter as a whole, the words complained of should be regarded as comment. He said it would be artificial to regard the words as a statement of fact.

"Read in the context of the rest of the letter, I think that the defendant was doing no...

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