Posted on 25th Sep 2011 in Case Comment
I’m reading a book
For pleasure and profit
The pleasure is variable
The profit small
I’m doing what’s called
“Reviewing”, by Paul Magrath (from Pretext 6 (2002), ed DJ Taylor)
As an occasional freelance book reviewer (and poet) this blogger has been following the Thornton v Telegraph Media Group Ltd litigation with more than merely jurisprudential curiosity. (The case has spawned a series of judgments in both the High Court and the Court of Appeal, one of which appeared earlier this month in the Weekly Law Reports.) It is the case about the biter bit — to the tune of £65,000. That was the amount of damages awarded to the author, Dr Sarah Thornton, against the publishers of The Daily Telegraph in respect of a review by the journalist Lynn Barber which was found to have been defamatory.
The book in question was called Seven Days in the Art World. In her particulars of claim Dr Thornton described herself as “an author, freelance writer and former full-time academic, specialising in the sociology of culture and in ethnography.” The book consisted of a series of fly-on-the-wall narratives based on seven different days spent covering events in the contemporary art world. Lynn Barber is a journalist known for her sometimes less than flattering interviews and profiles of well known figures (she won Interviewer of the Year at the British Press Awards in 2002), as well as her not always adulatory book reviews. She is also the author of an autobiographical work, An Education, which has been made into a successful film. At the time she was asked to review of Dr Thornton’s book, in the autumn of 2008, it seems safe to assume she was not being invited to give it an unqualified thumbs-up. That wouldn’t be her style.
The review begins in a spirit of robust scepticism:
Seven Days in the Art World by Sarah Thornton: review”
Confronted with reflexive ethnographic research on the art market, Lynn Barber isn’t buying”
Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of “ethnographic research”, which she defines as “a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds”. She also claims that she practices “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove.”
The bit in italics was described in the litigation as the “copy approval allegation” and was the subject of a complaint of malicious falsehood, as well as of defamation. Sir Charles Gray  EWHC 2863 (QB) at  and  held that this “significantly misdescribed what Dr Thornton says in her book about the way she deals with interviewees”. He granted her application to strike out the Telegraph’s defence of fair comment. (Indeed, barbed comment might be a more accurate description.)
In her next paragraph, Barber makes what was described in the litigation as “the interview allegation”:
Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn’t want to add to.”
The defamatory meanings which the review was said to contain were: (i) That Dr Thornton had dishonestly claimed to have carried out an hour-long interview with Lynn Barber as part of her research for Seven Days in the Art World, when the true position was that she had not interviewed Ms Barber at all, and had in fact been refused an interview. (ii) That [she] had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as “copy approval”. (iii) That [she] had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.
In respect of the interview allegation the Telegraph made a qualified offer of amends under section 2 of the Defamation Act 1996, which was not accepted. No such offer was made in respect of the copy approval allegation, to which the Telegraph (having had its defence of fair comment scratched out) returned in a fresh application, this time for summary judgment (ie dismissal) of that claim. That prompted a discussion of, amongst other things, the difference between personal defamation and business or professional defamation (in relation to the copy approval allegation).
Giving judgment in favour of the Telegraph this time, Mr Justice Tugendhat  1 WLR 1985 held that the imputation that Dr Thornton had engaged in the practice of copy approval was not capable of bearing any meaning defamatory in a personal sense, and that since the business of writing involved so many different standards of professionalism, it was impossible to say that a writer who wrote to (or fell below) one standard rather than another could be injured professionally by an imputation to that effect:
Absent a pleaded meaning such as hypocrisy, or a true innuendo, neither of which are pleaded in this case, I am unable to see how it can be defamatory of Dr Thornton to allege that she did not apply in her book the standards of journalists relating to copy approval. Or if it might otherwise be, then it does not overcome the required threshold of seriousness. (See para 104.)”
That left intact the claim in malicious falsehood and the defamation claim in relation to the interview allegation. The case was eventually heard as a witness action by Tugendhat J, who found both claims made out on the evidence  EWHC 1884 (QB). This must have been a humbling experience for Ms Barber, who claimed to have a famously poor memory (citing an assertion to that effect which she had made in her book, An Education, which had been put in evidence) but who was found to have exaggerated the paucity of her recollection and, in short, to have lied:
Mr Thwaites [counsel for Dr Thornton] challenged Ms Barber to explain why she had not checked to see whether or not Dr Thornton had interviewed her. Her first answer was her main response to this point. It was: “I didn’t believe she’d interviewed me. I was pretty sure about that”. But Mr Thwaites then asked how she could be sure enough not to check, given what she was claiming about her flaky memory. Under that pressure, she told what is certainly a lie. She said: “I was confused anyway, because the person I think I exchanged e-mails with was a New Yorker journalist; is that right? And here it was for a book. I wasn’t quite sure that she [Dr Thornton ] was the same person”. She had to accept this was a lie, because the first paragraph of the review identifies Dr Thornton as the person who had asked for an interview. (See para 96.)”
In relation to the copy approval claim (in malicious falsehood), his Lordship said, at para 178:
As Mr Thwaites pointed out in submissions, judges send the draft of judgments to the parties for their advisers to submit editorial corrections and to draw attention to obvious errors. Counsel may in a few cases contend that the draft judgment does not accurately record their submissions. In very rare cases counsel may point out that words used by a judge could be misunderstood, or that they reflect adversely upon a third party when it is unnecessary and inappropriate to do so (see eg Regina (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  QB 218, para 5). Judges commonly accept corrections and alterations requested by counsel, but no one could suggest that what the judge is offering is a right of approval, as opposed to an opportunity to submit feedback. The concern of the judge is to achieve fairness and accuracy, so far as possible, in his recitation of the facts and the submissions of the parties.”
No doubt the reporters of the ICLR, all of whom have submitted copies of their reports to the judges who wrote the judgments in them, will be relieved to know that that long established practice does not in any way detract from their professionalism — rather the opposite one would assume. Law reports are not, after all, examples of “reflexive ethnography”; nor are they an “acerbic review” (Lord Justice Sedley’s description of Barber’s piece:  EWCA Civ 510 at .)
Tugendhat continued, at para 179:
In my judgment, there is, as Ms Barber well understood, a distinction between quotation approval and copy approval, and no equivalence between them which is material to this case. Dr Thornton has satisfied me that she did not grant copy approval. The allegation that she did so is false, and Ms Barber knew that it was false. Ms Barber did not believe that there was any material similarity between what Dr Thornton granted to her interviewees and copy approval.”
He awarded damages of £50,000 in respect of the defamatory interview allegation and £15,000 for the malicious falsehood about copy approval. The total of £65,000 was to be divided equally between the print and online editions, on the basis that “website publication is more limited in numbers, but lasts much longer, and is likely to be seen by persons using search engines to find out about Dr Thornton”.
Should reviewers now be more careful? Undoubtedly. Should they now be less critical? Undoubtedly not. That is their job. The point about this case is not that Ms Barber was critical, but that she was careless, or even reckless; and that she did not check her facts, or her diary, or ask herself why Dr Thornton would have claimed to have interviewed her if she had not.
There is a long and, in the opinion of some people, respectable tradition of hatchet job reviewing. For example (pace Tugendat J in his earlier judgment) it might well be a professional libel to suggest that someone had written a kind or complimentary book review in Private Eye, which specialises in what one might call the adversarial type of review, when not parodying famous writers or exposing the backstabbing/backslapping cosiness of the literary world.
A reviewer is entitled to express an opinion, and vulgar abuse is no libel. What you cannot do is misrepresent the facts. What you must do is check them. Thornton v Telegraph Media Group Ltd  1 WLR 1985