Journalists writing for trade magazines can take comfort from a recent Court of Appeal case.
ITN Photonics Limited v Patterson reaffirms that to succeed in a trade libel, the claimant must establish not merely that the product has been disparaged, but also that this reflected adversely on the manufacturer or on the way in which it conducts its business.
In this case, the claimant manufactured a laser treatment system to lessen the appearance of wrinkles.
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The defendant medical practitioner wrote a letter to the customers of a beauty salon, claiming that he was withdrawing his services from the salon as customer satisfaction with the system was low, the distributors of the system had been declared bankrupt and because it was “indeed surprising that the Health Authority had allowed the product’s introduction into the area without any medical supervision”.
The manufacturer claimed that the letter was capable of meaning that it had allowed the salon to use the laser system without adequate medical supervision, which could have harmed users.
At first instance, Sir Oliver Popplewell agreed that the letter was capable of bearing this meaning. The Court of Appeal disagreed.
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The Court of Appeal stated that it should normally be slow to overturn an initial judge’s decision and to second guess him on what was largely a matter of impression, leaving the case to go to trial and to see whether the jury agreed that the words were in fact libellous. However, the Court of Appeal held that it had exceptionally to intervene in this case because: “One simply cannot get from these words an inference of responsibility on the part of the manufacturer.”
The manufacturer was not even referred to in the letter and the Health Authority was clearly stated as being responsible for ensuring adequate medical supervision of the product.
Trade libel cases will, therefore, be struck out unless the offending words can be construed as reflecting badly on the manufacturer.
This may be the case simply because they impute at least incompetence on the part of the manufacturer and the way it runs its business. However, some adverse personal imputation has to be involved before their case can go forward.
Jennifer McDermott is a partner in the technology, media & communications department at Lovells
by Jennifer McDermott
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