In the present case we must remind ourselves that this was a
factual programme, likely to appeal primarily to a seriously
minded section of television viewers, but it was a programme
which, even if watched continuously, would have been seen
only once by viewers many of whom may have switched on for
entertainment. Its audience would not have given it the
analytical attention of a lawyer to the meaning of a document,
an auditor to the interpretation of accounts, or an academic to
the content of a learned article. In deciding what impression the
material complained of would have been likely to have on the
hypothetical reasonable viewer we are entitled (if not bound) to
have regard to the impression it made on us.”
52.
The overall, subjective impression gleaned from a television programme may be
relevant to interpretation. As Eady J said in Bond v BBC [2009]EWHC 539 (QB) at
[9]:
“9. It is important to acknowledge that assessing the meaning(s)
of an hour long television programme is to a large extent a
matter of impression. Yet it is also necessary to remember that
the test is objective, so that one must always have in mind how
the reasonable viewer would interpret it. Nonetheless, it is
recognised in the authorities that the judge can take into
account his or her own subjective reaction as part of the
process. Beyond that, one must not be over-analytical, in the
sense of subjecting the text to a leisurely or legalistic
breakdown: ordinary viewers will not have had that
opportunity. The overall flavour of a programme may
contribute to an interpretation which would not necessarily be
found when subjecting the text to piecemeal analysis. There is a
risk that such an exercise will focus on the trees and miss the
wood.”
Innuendo meaning
53.
The same principles apply where the meaning complained of is an innuendo meaning.
An innuendo meaning, in the sense the term is used in this case, is one that depends on
the reader knowing some fact that is extraneous to the statement complained of, and
not common knowledge. The pleading of an innuendo meaning must “identify the
extraneous facts”: 53PD 2.3(2). It must also explain how those facts became known to
the reader. Often this second task is accomplished by relying on inference from third
party media coverage, as in this case.
54.
What may not be done, in reliance on an innuendo referring to third party media
publication, is to incorporate in the claim some defamatory meaning which is
conveyed only by the third party publication (per Warby J in Rufus v. Elliot, supra at
[22]).
Fact or opinion
55.
The approach the Court should take when determining whether the words complained
of are fact or opinion was summarised in Yeo v. Times Newspapers Ltd [2015] 1 WLR
971 as follows (at [88] and [89]):
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