Cassidy v Daily Mirror Newspapers Ltd

Facts

A photograph of a man, known by a different name from that of his wife, and a woman was published in the Daily Mirror with a caption announcing their engagement. The man was in fact married to Mrs Cassidy, who lived apart from him and who was known to her acquaintances as his wife. The newspaper did not know of the marriage or intend to refer to her. Mrs Cassidy said that the caption suggested she was not his wife and had been living with him as his mistress.

History

A jury found the caption defamatory of Mrs Cassidy and awarded damages of five hundred pounds. The newspaper appealed to the Court of Appeal.

Issue

Whether words innocent on their face are defamatory of a person who is not mentioned when readers who know the true facts would understand them to refer to and to lower the reputation of that person, and whether the publisher's ignorance of those facts is a defence.

Held

Appeal dismissed. The words were capable of a defamatory meaning by innuendo, and the publisher was liable despite having had no intention to defame and no knowledge of the relevant facts.

Ratio

• Words that are not defamatory on their face may be defamatory by reason of facts known to some readers, and the publisher is liable if reasonable people knowing those facts would understand the words as defaming the claimant.
• Liability for defamation does not depend on the publisher's intention or knowledge of the circumstances that give the words their defamatory meaning, so the publisher takes the risk of publishing words that could be understood to refer to and defame another.

Key reasoning

• A reasonable reader who knew that Mrs Cassidy was married to the man pictured would conclude that the caption implied that he was unmarried and so that she had been living with him outside marriage.
• The question is how the words would be understood by reasonable persons with the relevant knowledge, not what the newspaper intended, and it is for the publisher to take care before publishing statements about private relationships.
• Placing the risk on the publisher is appropriate because it is the publisher who controls what is published and can verify the facts or avoid publishing.

Where it fits in the module

For FHS Tort, Cassidy is the starred case on what is defamatory and on the role of the reasonable reader and extrinsic facts in determining meaning. It tests the tension between protecting reputation and protecting freedom of expression, since liability can be incurred by an innocent publisher, and so students should connect it to the later development of defences and statutory reforms, including the Defamation Act 2013 serious harm threshold. They should be able to discuss whether strictness of the liability can be justified.

Criticisms

• Liability without fault places a heavy burden on publishers, who cannot know all the private circumstances of persons who may be identified by readers with special knowledge.
• The decision gives weight to the knowledge of a small group of readers, so a claimant's reputation can be damaged in circles that the publisher could not have anticipated.
• The strict approach to publication and meaning sits uneasily with the modern emphasis on free expression and the requirement of serious harm to reputation.