Defending ‘clickbait’, the Bane and Antidote Principle

Context is crucial when it comes to defamation. The entire publication or conversation must be considered, not just a headline, caption or comment, so that any defamatory words are put into context. The potentially defamatory allegation - the ‘bane’ – can be neutralised by any other part of the publication or conversation – the ‘antidote’. Put simply, the context can offset or take away any defamatory meaning. This principle can be especially useful when assessing ‘clickbait’ – content designed to attract attention and entice users to find out more or in reality nowadays, to simply ‘click here’.

Defending Defamation

The Defamation Act 2013 outlines six defences one can rely on when facing an action for defamation. These include:

• Truth (formerly justification);
• Honest opinion (formerly fair comment);
• Public interest (formerly the ‘Reynolds’ / Responsible Journalism Defence);
• A defence for operators of websites;
• A defence for peer-reviewed statements in scientific or academic journal; and
• A defence for reports protected by privilege.

However, before any consideration is given to these defences, the natural and ordinary meaning of the words complained of must be established, to decide whether these words are in fact defamatory. In essence, what do the words mean and would they harm the reputation of the person they relate to (or who they could be understood to relate to)?

This is determined as a question of fact by establishing the meaning that an ordinary reasonable reader would find the publication to bear. When establishing this, importantly, the whole publication must be considered, so that the words are put into context. In other words, the reader is taken to consider the potentially defamatory words (the “bane” or “poison”), in light of any part of the publication which may render this defamatory statement innocuous (the “antidote”).

This principle of “bane” and “antidote” has recently been a point of consideration in relation to reporting of allegations made by other third parties, to the effect that two senior members of the British Royal Family were identified in a Dutch translation of the book Endgame as having made racist remarks. In his show, broadcast on TalkTV, Piers Morgan elected to name the individuals purportedly identified in the translation. This risked a possible defamation action as in England & Wales, a publisher who repeats a defamatory statement is treated for the purposes of meaning as having made the original statement themselves.

The “Bane” and “Antidote”

The origins of this well-known principle find itself in the case of Chalmers v Payne (1835), in which Baron Alderson coined the term “the bane and the antidote must be taken together”. This principle gained further distinction in the case of Charleston v News Group Newspapers Ltd [1995] 2 AC 65, in which two actors sued a newspaper publisher for defamation arising from the publication in the News of the World of digitally manipulated images (what would now be referred to as ‘deepfakes’), showing the faces of the two actors from the well-known TV programme, “Neighbours”, superimposed on near-naked bodies in pornographic poses. However, the accompanying text made it clear to the reader that these photographs had been artificially produced by a video game producer and without the consent of the claimants, which was condemned by the newspaper.

The question for the House of Lords was whether the publication of the photographs was capable of bearing a defamatory meaning, whether viewed on their own or with the headlines and captions. The House of Lords held a claim for libel could not be founded on a headline or photograph in isolation from the related text. The question of whether the article was defamatory had to be answered by reference to the response of the ordinary and reasonable reader to the entire publication. On the facts of the case, the House of Lords held no reader could possibly have drawn the inference that the two Neighbours actors could have been willing participants in the photographs either by posing for them or by giving consent for their faces to be superimposed on the bodies of others.

Recent consideration of Bane and Antidote

More recently, the Bane and Antidote principle came under consideration in the case of Spicer v The Commissioner of Police of the Metropolis [2019] EWHC 1439 (QB). In this case, a “respectable and widely liked young man” had been named in an article by the Metropolitan Police Service entitled “Two guilty of killing a woman while racing their cars”. The article went on to report that, although the Claimant and another man had been charged of causing death by dangerous driving, the Claimant had, in fact, only been convicted of careless driving.

The Claimant complained that the meaning of the article was that he and the other man had been found guilty by jury of killing a young female pedestrian. However, the Defendant argued that it meant there were reasonable grounds to suspect that the Claimant had been involved in racing his car against another car, with the other car striking a young woman who was killed. The then-Mr Justice Warby held that: “The law does not permit a claimant to sue for damages in respect of a headline, however defamatory, if the headline and article are mismatched, and the impact of the headline is contradicted or neutralised by the remainder of the article”. Accordingly, the Court held the natural and ordinary meaning of the Metropolitan Police’s article, when read as a whole, was not defamatory.

In the context of Mr Morgan’s comments discussed above, his decision to reveal the names of senior members of the Royal Family could risk a defamation action by those members. However, the ‘antidote’ to the bane was provided in the preamble to Mr Morgan’s comments, in which he stated that he did not believe the assertions in Endgame were true. Mr Morgan alluded to a further potential defence by hinting at public interest, by stating that the British public who “pay for the royal family are entitled to know” who were named in the Dutch translation. However, whether that would be enough to protect Mr Morgan from a libel action remains to be seen.

Conclusion

Many will argue that the law allows newspapers and websites to publish false and potentially damaging ‘clickbait’ headlines, which members of the public may take at face-value. However, many will be reassured knowing that comments or publications will not be taken out of the context with which they were made.

Regardless, this principle is a key consideration that must be taken into account by any individual seeking to bring a claim in defamation against a party regardless of any formal defence that the party may have. Further, any publisher who publishes defamatory headlines needs to seek to ensure they stay on the right side of the line in terms of the impression their content leaves, if they are to avoid libel actions being brought and the actions being successful.

Hamlins’ Media Disputes department is one of the largest and most successful Media Disputes teams in the UK and is widely recognised as an advisor of choice for both public and private figures seeking advice in relation to defamation, reputation management, pre-publication libel and privacy law. If you would like to find out more about how Hamlins can help you, please get in touch.