Can an imputation of disloyalty be defamatory?

The High Court has ruled against former professional footballer Richard Rufus in his defamation claim against a former colleague, Paul Elliott.¹ This case has been making its way through the courts for some time: the High Court had previously found that a press release issued by Mr Elliott with an imputation of disloyal conduct on the part of Mr Rufus was capable of being defamatory of Mr Rufus. The point was upheld by the Court of Appeal.

In March 2015, the case returned to the High Court, which has now held that the words used were not in fact defamatory.  The decision was based on a finding of fact by Mr Justice Warby that the ordinary and natural meaning of the words used by Mr Elliott was not as Mr Rufus claimed.  The case includes interesting analysis of when an imputation of disloyalty may or may not be defamatory, but without setting any firm precedent.

Background

Richard Rufus and Paul Elliott are former professional footballers.  At one time they were friends and business colleagues.  Mr Rufus assisted in community work through the Charlton Athletic Community Trust, and Mr Elliott was involved in various anti-racism initiatives in football, including as a trustee of the Football Association’s “Kick It Out” anti-racism campaign.

In December 2012, the two men fell out over a business venture.  Subsequently, Mr Elliott sent Mr Rufus a private text message that used an abusive discriminatory term tied to race or colour.

On 18 February 2013, both men were then the subjects of an “exclusive” article in The Sun newspaper, which made the contents of the text message public.  The article was entitled: “N-word slur by CBE Ace, Anti-racism chief’s rant” and contained prominent photographs of both men.  The article stated that the text message read: “Ur a stupid man n***** … You dog, Ur history my friend.”  According to the article, Mr Elliott had insisted that the term was not offensive – first because of the nature of the conversation, and secondly because it was between two black men.

On 23 February 2013, Mr Elliott published a press release on the “Kick It Out” website.  It was headed:  “Paul Elliott CBE resigns as Kick It Out Trustee”.  The press release went on to make the following statement: “Earlier this week, a former friend and business colleague, made public a [sic] SMS text message I sent him, in which I used a term which is widely known as being derogatory to my community.  I regret using it; it is inappropriate and not part of my everyday vocabulary.  As an advocate of high standards of public behaviour and integrity in public life, I know the use of this word sends out mixed messages and contradicts my position as a Kick It Out trustee.”

Proceedings

Mr Rufus issued libel proceedings against Mr Elliott, arguing that the words used in the statement meant, by way of innuendo, that Mr Rufus, “as a former friend and business colleague”, had “acted dishonourably”, had “betrayed” Mr Elliott and had “deliberately harmed his reputation” by publicly disclosing the text message, which was inappropriate in that it contained a term widely known as being derogatory of the black community and contradicted Mr Elliott’s role as a Kick It Out trustee, causing his resignation.  Mr Rufus’ stance throughout the case was that he had not made the text message public, and had nothing to do with the fact that it had become public.

Mr Elliott applied to the High Court to have Mr Rufus’s claim struck out on the ground that the words complained of were incapable of bearing a meaning defamatory of Mr Rufus.  Mr Justice Dingemans rejected the application.  On appeal, Dingemans J’s decision was upheld by the Court of Appeal.

High Court decision

It fell to Mr Justice Warby to determine meaning and whether the words complained of in the press release were in fact defamatory of Mr Rufus.

Warby J decided that the correct approach was first to decide what the words would suggest to the ordinary reader about Mr Rufus.  The question was then whether the attribution to Mr Rufus of the particular behaviour or state of mind, or whatever else was suggested by the words, was defamatory.  At that stage, the question would be what the reader would think of a person who had acted or thought in the way stated or implied by the words.  Accordingly, he would have to consider whether the reader would regard Mr Rufus as having acted in a way that was “wrong”, “deplorable”, “culpable”, “disreputable” or similar.

Meaning

The innuendo pleaded by Mr Rufus complied with the basic principles of construing innuendo meaning in that it depended on the reader’s knowledge of a fact that was extraneous to the words complained of.

Mr Rufus pleaded that there were readers of the press release who already knew three things (agreed to be facts): i.e. that (a) Mr Elliott had sent (b) Mr Rufus (c) an offensive text message containing “the n-word”.  Mr Rufus said that these facts were known to readers of The Sun article and other third-party publications.  In Warby J’s judgment, to those within these groups who had read the press release, the words would mean at least that Mr Rufus, a former friend and business colleague of Mr Elliott, had publicly disclosed Mr Elliott’s text message, in which Mr Elliott had abused and threatened Mr Rufus, using what at certain points the judgment refers to as “the n-word”.

In Warby J’s view, however, the press release did not bear the meaning that Mr Rufus claimed: it meant, by way of innuendo, that Mr Rufus, a former friend and business colleague of Mr Elliott, had publicly disclosed the text message that Mr Elliott had sent him, in which Mr Elliott, a trustee of the Kick It Out campaign and a long-term anti-racism campaigner, had abused Mr Rufus by using an extremely offensive word and had threatened him.  As a result of the disclosure, Mr Elliott had resigned his position as trustee because, as he acknowledged, his use of the offensive word was inappropriate and conflicted with his public position.  In other words, Mr Elliott had felt that it was right to resign because of his use of the extremely offensive word.  Mr Elliott was essentially saying that his resignation was necessitated by his behaviour in sending the text – not because the text had been made public.  This was the natural reading of the words and was what the ordinary reader would understand, Warby J said.

Further, in the judge’s view, the words did not convey the impression that Mr Elliott was, in the course of confessing his own faults, complaining of dishonour or disloyalty by his former friend, Mr Rufus.

Defamation

Here, Warby J noted, the issue was not whether the statement was actionable under the Defamation Act 2013.  That Act came after the issue of proceedings in this case.  The issue to be decided was an issue of common law: whether the statement was defamatory at all.

In Warby J’s view, the press release was not defamatory of Mr Rufus because the conduct that it attributed to him by way of innuendo (i.e. the disclosure of the text message) was not conduct that would lower him in the esteem or opinion of right-thinking members of society generally.  Reviewing the case law, the judge commented that an allegation of disloyalty may or may not be defamatory depending on the context and on the relevant collective standards of members of society at the time and place of publication.  On these facts, it was not the case that right-thinking members of the public generally would disapprove of the actions of Mr Rufus in revealing the contents of the text message, had he in fact done so (Mr Rufus having denied disclosing the text message).

On the issue of “disloyalty”, Warby J accepted that there was a “societal norm” not to betray or dishonour.  He did not, however, accept that it placed the duties implied by friendship above the desirability of holding to account a public figure (in his capacity as trustee of Kick It Out), whose private behaviour contradicted his public stance.  If, contrary to that view, such conduct would be regarded as involving disloyalty, then even so it was disloyalty of a kind that was not “culpable or blameworthy by society in general”.

Given the fact that use of the “n-word” is so very strongly disapproved of by society as a whole, Warby J said, reasonable members of the public would not find it surprising, inappropriate or wrong that Mr Elliott had felt compelled to resign from his position as a Kick It Out trustee for using the word about Mr Rufus.

In addition, the judge said, although society respects the privacy and confidentiality of private communications such as text messages, there is no consensus view that private messages to friends must always, in every single circumstance, be kept secret or protected.  In other words, it could on occasion be right to “out” what a person had said privately, and to do so in or through the news media.  This is particularly so, the judge said, where the person is a public figure and/or has taken a public position on an issue that is at odds with the person’s private behaviour.

Here, Warby J said, Mr Elliott had held a public position, as a Kick It Out trustee, explicitly endorsing an anti-racism campaign.  His private use of racist language towards Mr Rufus would have been viewed by reasonable members of society generally in the same way that Mr Elliott himself had regarded it: inconsistent with that public position.  The importance of integrity in public life and the maintenance of high standards would be seen as “amply justifying such disclosure”, even though the message was private and not intended by Mr Elliott to have any wider audience.

Comment

The High Court’s decision is perhaps unsurprising on the specific facts of this case.  At earlier hearings, both Dingemans J and the Court of Appeal had found that the statement was capable of being defamatory.  But both of those rulings related not to the actual meaning pleaded, but whether the words were capable of being defamatory at all.  In the circumstances, Warby J made it clear that, in his view, right-thinking members of the public generally would not disapprove of “blowing the whistle” publicly on the use of an unacceptable racially offensive term by Mr Elliott given his role with Kick It Out, even if it meant that a minority might come to the view that Mr Rufus had been “disloyal” in his actions.

This is a case that was very much decided on its own facts.  It sets no precedent as to whether or not imputations of disloyalty are defamatory.  Nor does it suggest that an allegation regarding the release of private text messages by a recipient will never be defamatory.  It will be interesting, however, to see whether future cases brought under the Defamation Act 2013 regime will result in dealing with meaning at the earliest possible opportunity, rather than after a number of hearings as to whether words are capable of being defamatory, as in this case.

Jon Oakley, Partner, Michael Simkins LLP

[1] Richard Rufus v Paul Elliott [2015] EWHC 807.