The case was between Dr Sarah Thornton and the Telegraph Media Group, and involved her book, "Seven Days in the Art World". A review in the Telegraph alleged that Dr Thornton had engaged in what is known as 'copy approval', giving her interviewees the chance to read what she proposed to write in advance of publication. This is a practice that is generally frowned upon in a journalistic context (I do that in my Racing Post Guides but only for reasons of accuracy). In addition, Thornton claimed that the review, by Lynn Barber, suggested that she had dishonestly claimed to have interviewed Barber as part of the research for the book.
After a lot of to'ing and fro'ing, on 26 September 2009 the Telegraph issued the following apology:
In her review of 'Seven Days in the Art World' by Sarah Thornton (Nov 1, 2008) Lynn Barber took issue with Dr Thornton’s assertion that she (Ms Barber) was among the 250 people who had been interviewed for the book, either face to face or by telephone.
In fact, Ms Barber did have a pre-arranged telephone interview with Dr Thornton two years earlier which lasted over 30 minutes.
We and Ms Barber therefore now accept that it would be wrong to suggest that Dr Thornton made a false or dishonest claim to have interviewed Ms Barber and apologise to Dr Thornton for any distress caused by any contrary impression the review may have given.
In addition, the review commented on Dr Thornton’s use of a practice known as “reflexive ethnography” which Ms Barber equated to “copy approval”.
Dr Thornton points out that she did not give interviewees the right to alter any material she had written about them and that she always maintained complete editorial control of the final product and used the feedback provided by her subjects entirely as she saw fit.
However, that was far from the end of the matter. There were appeals, and finally, in June of this year Mr Justice Tugendhat dismissed Dr Thornton's libel claim. The crux of the matter is that defamation claims must meet a seriousness threshold before they are actionable, and that they must affect the 'actions' of right-thinking people, not just their thoughts or opinions of the claimant. Furthermore, he distinguished between personal defamation, and business defamation. The judge found that the claim of 'copy approval' didn't meet the standard of seriousness required to be a personal libel.
As far as business defamation was concerned, the Telegraph argued that, while copy approval was wrong in journalism, it was acceptable in the context of books. Mr Justice Tugendhat ruled that if a writer can use different standards for different readers and markets, then it's not defamatory to say that a writer is writing to one standard rather than another.
The result is a revised definition of 'defamtory': 'the publication of which [the claimant] complains may be defamatory to him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so'. The key word is 'attitude' which replaces 'estimation', because he said that makes it clear that it's the actions of people rather than their opinions that matter.
That might not be the end of this matter as his ruling will quite possibly be challenged somewhere along the road. On one level this is akin to angels dancing on a pinhead, but on another it's a victory for the press in that it raises the bar for those who might want to sue for libel.
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