to attract and approaching its gist with that degree of attention to detail in mind. A
Muslim audience is always likely to be attentive to what a Chief Imam says on
matters of guidance; but there is likely to be a qualitative difference between (a)
an annual dinner, (b) a session like the Deviant Groups whose purpose was
“primarily educational” and where those attending can be assumed to have come
because they had a particular interest in the subject, (c) a religious lecture and (d)
those taking the trouble to listen to or watch the Claimant’s speeches on the web
or YouTube. An audience is also likely to be particularly attentive to answers
given to questions from fellow members of the audience.
(4) Principle (4) is applicable: the issue is what meaning his words in their proper
context conveyed, not what the Claimant intended to say. The test of meaning is
objective. The clearer the message, the less likely it becomes that the Claimant did
not intend it.
(5) Principle (5) (‘the speech must be read as whole’) is applicable to the second
exercise but in a more nuanced or flexible way. The principle has particular utility
in the first exercise in order to ensure that ‘bane and antidote’ are taken together.
But because the Court is not searching for a ‘single’ meaning, the principle is less
efficacious in the second exercise. The Court is under no rigid obligation to
approach the speech as a whole. However, if the Claimant makes an assertion in
one passage and clearly qualifies it in another, the qualification would clearly be
relevant and has to be taken into account, judging the relative strength of the
primary message compared with qualification.
(6) Principle (6) is relevant. Audiences vary. An ordinary viewer of a BBC
television programme will be different from those attending an educational or
religious lecture.
(7) Principle (7) is relevant (see the principle of reasonableness (1) above).
(8) Principle (8) is primarily applicable to the first exercise.
However, in the
second exercise, the Court could when considering the range of reasonable
meanings of a particular passage, decide that any particular passage bears a clear
meaning which all or almost all present would draw. But ultimately it must be
borne in mind that the second exercise is concerned with determining whether the
sting is
‘substantially true’.
(3)
Legal test for defence of justification
63.
The BBC broadcast in question predated the coming into force of the Defamation Act
2013; accordingly, this case is governed by the Common Law and the Defamation Act
1952.
64.
The legal test for a defence of justification is whether the defendant can prove that the
allegation made in the words complained of is “substantially true” (see Rothschild v
Associated Newspapers [2013] EMLR 18 at [24]-[26]). Section s.2(1) of the 2013 Act
is to the same effect.
65.
It is the substance of the allegation which matters. As Eady J. emphasised in Turcu v.
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