Telnikoff v Matusevitc
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 14 November 1991 |
| Judgment citation (vLex) | [1991] UKHL J1114-2 |
| Court | House of Lords |
| Date | 14 November 1991 |
[1991] UKHL J1114-2
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Oliver of Aylmerton
House of Lords
My Lords,
This is an action for libel brought by one Russian emigre against another. On 13 February 1984 the plaintiff, Mr. Telknikoff, was employed by the B.B.C. Russian service as a probationer. On that date the "Daily Telegraph" newspaper published an article written by him headed "Selecting the right wavelength to tune in to Russia." Having set out the history of broadcasting to Russia, the article 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.
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."
The defendant, Mr. Matusevitch, is a Russian Jew who suffered persecution there before emigrating. He was at the time of publication of the article employed in London by Radio Liberty, a United States radio station. Having read the article he wrote a letter to the "Daily Telegraph" which published it on 18 February 1984. The terms of the letter, the paragraphs of which I have numbered for ease of reference, were these:
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1. "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.
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2. 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.
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3. 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.
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4. 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 paranoic situation, desperate victims of these Soviet racialist (anti-Semitic) policies took the opportunity to emigrate.
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5. 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.
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6. 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.
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7. 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.
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8. 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.
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9. One could expect that the spreading of racialist views would be unacceptable in a British newspaper."
The plaintiff took strong exception to this letter. Solicitors instructed by him wrote to the defendant demanding an apology, which was not given, and on 18 April 1984 they issued a writ for libel against him, followed next day by a statement of claim, which set out the terms of the defendant's letter and pleaded in paragraph 4:
"In their natural and ordinary meaning the said words meant and were understood to mean that the Plaintiff
(i) Advocated the introduction of blood-testing as part of the recruitment process of 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."
The defendant pleaded fair comment in a matter of public interest, but not justification. The plaintiff alleged in reply that the defendant was actuated by express malice.
On 5 October 1988 the action came to trial, in the defendant's absence, before Michael Davies J. and a jury. The plaintiff was awarded damages of £65,000 and costs. However, on 28 April 1989 Michael Davies J., on the defendant's application, set aside the judgment and ordered a re-trial, which took place before Drake J. and a jury, starting on 22 May 1989. The plaintiff conducted his own case and the defendant was represented by counsel. At the close of the plaintiff's case on 24 May it was submitted to the judge on behalf of the defendant that there was no case to go before the jury, in respect that (1) any reasonable jury properly directed would be bound to sustain the defence of fair comment, and (2) there was no evidence of express malice. Drake J. upheld this submission. The plaintiff appealed to the Court of Appeal [1991] 1 Q.B. 102 (Lloyd, Glidewell and Woolf L.JJ.), which dismissed the appeal but granted leave to appeal to your Lordships' House, which the plaintiff now does.
The first matter considered by Drake J. and the Court of Appeal was whether those parts of the defendant's letter which were defamatory in character, in particular paragraphs 6 and 7, were capable of being regarded as statements of fact or could only properly be held to be comment. Since justification was not pleaded the plaintiff would necessarily succeed if the jury, the issue being left to them, were to decide that these paragraphs contained statements of fact. Drake J. said that on a consideration of the letter as a whole he had no doubt that these paragraphs constituted comment. If he had felt any doubt about the matter he would presumably have left it to the jury to decide, having regard to the law as stated in Halsbury's Laws of England, 4th ed., (1979) vol. 28, para 228:
"The question whether all or some of the words complained of are statements of fact or comments is a question of construction for the judge. If, in his opinion, there is no reasonable doubt, he must direct the jury accordingly; but if, in his view, there is reasonable doubt as to whether the words are statements of fact or expresions of opinion he must leave it to the jury to decide."
In the Court of Appeal Lloyd L.J. expressed the opinion that the paragraphs in question could clearly amount only to comment, whether regard was had only to the terms of the letter as a whole or whether, as he thought to be correct, the contents of the plaintiff's article were also taken into account. Glidewell and Woolf L.JJ., on the other hand, took the view that if the letter alone were looked at it would be arguable whether what was contained in the offending paragraphs was statement of fact or comment. But they both considered that the letter should be read along with the contents of the plaintiff's article, and that when that was done the only possible view was that the paragraphs in question constituted comment.
I am of the opinion, in common I understand with the majority of your Lordships, that if the letter alone is looked at it would be open to a reasonable jury properly to find that the offending paragraphs contained statements of fact. Paragraph 2 of the letter quotes one sentence from the plaintiff's article. Paragraph 6 states, in the form of a statement of fact, that the plaintiff demands that the B.B.C. Russian Service should switch from professional testing to a blood test. It seems to me that this is capable of being read as describing something else that the plaintiff has said in his article. As regards paragraph 7, the words "Mr. Telnikoff is stressing his racialist recipe" are undoubtedly pure comment, but what follows "by claiming that no matter how high the standards and integrity 'of ethnically alien' people Russian staff may be, they should be dismissed" is in my view capable of being read as a fact upon which the defendant...
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