Newton Dunn, was off the record. In my judgment Mr Newton Dunn has convinced
himself that the statement was off the record in an attempt to rationalise what was
otherwise an inexplicable failure to include the reference to Black Sabbath in the
online article. When Mr Newton Dunn got the response about the source of stylised
“S”’s being the Black Sabbath album cover he was entitled to maintain his opinion,
but if he wanted the protection of section 4 of the Defamation Act 2013 he was not, in
my judgment, entitled to ignore that information and not include it in the online
article.
101.
I accept that Mr Newton Dunn did include Mr Burgon’s quotation in the online
article, but this makes the failure to include the reference to Black Sabbath even more
inexplicable, because it shows that there would have been time to include the
reference to Black Sabbath in the online article. I note that the reference to Black
Sabbath was incorporated into the newspaper article. I have been careful to avoid
using hindsight, and making the impermissible leap that because one sub-editor
included the reference to Black Sabbath it follows that it must be included in the
online article, but in my judgment in order to obtain the protection of section 4 of the
Defamation Act 2013 a reference to Black Sabbath was necessary as part of
responsible journalism.
102.
The evidence shows that Mr Newton Dunn still holds the view that Dream Troll (and
Black Sabbath) were wrong to use the stylised “S” and he is entitled to share that
view, but Mr Newton Dunn had to deal with the points made on behalf of Mr Burgon
fairly. When dealt with fairly there was a story to be had (as part appears from the
newspaper article) but the essential thrust of the story is different. One is about Mr
Burgon joining a band which as he knew took great pleasure in using Nazi symbols.
The other is about Mr Burgon joining a band which had produced an image based on
the Black Sabbath album cover which used stylised “S”’s, which some persons might
consider to be similar to the “S”’s used in the “SS” symbol.
Legal principles for the assessment of damages and the award of aggravated
damages for libel
103.
It is established that libel damages have a threefold purpose namely: (1) to
compensate for distress and hurt feelings; (2) to compensate for actual injury to
reputation which has been proved or might reasonably be inferred; and (3) to serve as
an outward and visible sign of vindication. Damages are to be compensatory, and not
punitive, see generally Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015.
104.
Damages are at large and a wide range of matters may be taken into account including
the conduct of the Claimant, his position and standing, the subjective impact of the
libel on him, the gravity, mode and extent of publication, the absence or refusal of
retraction or apology, and the relevant conduct of the Defendant to verdict.
105.
In coming to a figure the standard tariffs for pain and suffering in personal injury
awards can properly be taken into account, as well as jury awards approved by the
Court of Appeal and previous awards by judges, see John v MGN Limited [1997] QB
586. I am conscious of the direction not to adopt an analytical approach involving
conventional bands of damages, for the reasons given in Cairns v Modi.