The explosion of text messaging is creating a new version of English very quickly but the law of libel has always needed to keep up to date with language.
The first thing a libel lawyer has to do is to determine what the words complained of mean and then decide whether that meaning is defamatory. The meaning of words can change (“gay” being an obvious example) but so can attitudes.
In 1683 it was actionable to call a person a papist and to say that he went to mass. By 1968 in Australia an allegation of witchcraft was held not to be defamatory as to the ordinary Australian does not now believe in it. In the Deep South of the US it was actionable as late as 1954 to state that a white person was black.
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These cases may now be curiosities but “the natural and ordinary meaning” of words can still cause problems. The test: what do the words convey to the mind of the ordinary, reasonable, fair minded reader? And the natural and ordinary meaning may include implications or inferences so to claim, as Tatler did to its cost, that someone was an “old boot” meant to readers in Scotland that she was a woman of loose morals, practically a prostitute.
The Court of Appeal heard in 1991 that the expression “boot” was regarded as meaning “ugly, old harridan” but a further sense of “promiscuous person” was pleaded as an innuendo, a meaning confirmed by its appearance in a specialist dictionary of slang. Back in 1943 the Court of Appeal spent hours working out the meaning of “pansy”. But today vulgar abuse is not defamatory.
A journalist therefore has to keep up-to-date on current general usage. “Blackleg” now means a scab but in 1858 it meant a gambler.
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If an expression has not yet become part of ordinary usage it can still be defamatory if its new meaning was know by some or all of those to whom the words were addressed (but the Claimant has to prove publication to persons who had knowledge of this innuendo meaning).
So to say that someone was taking a “duvet day” would suggest to many at least that they were skiving, taking a sicky, lying to an employer about illness. History may show that “Blair speak” is defamatory but its meaning is currently uncertain.
The good news for lawyers is that the wonderfully complicated English language can free up new defamatory meanings where none were expected (and intention is no defence). According to the BBC’s e-cyclopedia there are 141 words for “drunk” including minging, mullered to (oddly) Bernard Langered, chevy chased and Michael Fished! So no need for old styles of attack such as drunk as a lord.
It clearly would be defamatory to accuse a politician of being linked with the Mafia but it was not a libel where a paper stated a Scots councillor was part of the “Monklands Mafia”.
The arrival of picture messaging on mobiles will complicate things still further. Vodafone has “The Little Book of Picture Messaging” so that everyday objects can become significant messages. So a door knob indicates an idiot and the back of a bus an ugly date. These are just suggestions but it is expected users will come up with their own codes and, lawyers hope, their own libels.
But there is a serious lesson for journalists. Beware of using the new patois unless one is sure what its current usage is. Mistakes can be expensive.
Duncan Lamont is a media lawyer at Charles Russell Solicitors
Duncan Lamont
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