Defamation by Implication and Association

As specialist defamation solicitors, we at Pinder Reaux read the recent High Court decision pronounced by Mr Justice Tugendhat in the Elton John v Times libel case, with interest.

Elton John brought proceedings on the basis of two articles published by the Times in June 2012 which concerned tax avoidance schemes.

The articles concerned Elton John’s former accountant Patrick McKenna of Ingenious Media. Although the original article published by The Times made allegations regarding the movement of monies offshore, The Times quickly published a clarification statement in which it was said that Ingenious Media had not been involved in moving funds offshore to avoid tax.

Elton John’s defamation solicitors conceded a number of points on this case i.e. that references to their client were few and far between and that there was no obvious and express defamation. Their main complaint was based on the fact that the nature of the article and the claims made therein created an implication that Elton John was linked to tax avoidance schemes, even though this was not expressly stated. Mr Justice Tugendhat ruled that the words published did not bear the defamatory meaning that Elton John’s defamation solicitors were advocating, and therefore there was no defamatory implication, even if he did concede that Elton John may take offence or exception to the inaccurate statements given his large scale philanthropic works.

The decision gives an indication as to how the Courts will consider cases that involve defamation by implication and association. This type of case is what we label in-house as ‘subtle defamation’, not obvious but still present below the surface.

It may sound obscure, but defamation by implication and association does happen. Clever publishers can structure articles where reading between the lines brings about the defamation i.e. the omissions and what is not said are damaging. We are intelligent individuals and very few of us take anything written in newspapers/magazines or on the internet at face value, and this is something the Court has to consider when examining such cases of subtle defamation. Cases such as this are a prime example of why the Court adopts the ‘what would the layman consider the words to mean test’ when deciding its judgment.

In our first-hand experience in cases such as these the Court is open to accepting and ruling in favour of claimants defamed by means of association and implication. This is a strategy and legal avenue that we often consider where our client’s reputation management and reputation protection are concerned. Just because an article is not screaming defamation from the top of its lungs, it does not mean that it is not defamatory of you and your business. If you think this applies to you, then it probably does. Rest assured that we at Pinder Reaux, as specialist defamation lawyers have the tools and strategic thinking to help combat ‘subtle’ defamation.

John Spyrou

Head of Internet Law and Media Law @ Pinder Reaux and Associates