For many individuals and businesses, reputation is everything. It is the social currency that influences how successful people, and their businesses, are.
Particularly in today’s digital age where comments and opinions can be voiced publicly and instantaneously, reputation can be built or destroyed within seconds.
It is important that reputation is protected.
This article provides an update on the recent case of Dyson v Channel 4 and in particular, whether you need to be named in a defamatory statement in order to have a viable claim.
Recent case law – the importance of being named in the allegation
On 25 February 2022, two entities of Dyson (well-known company associated with the making of vacuums) and Sir James Dyson (founder of the corporation) issued a claim against Channel 4, and ITN (makers of the programme), for libel.
Libel is a published false statement that is damaging to a person’s reputation i.e. a written defamation.
In short, the claim relates to a broadcast by Channel 4 on 10 February 2022 which included allegations of appalling abuse and exploitation in factories in Malaysia run by a company called ATA Industrial, that manufactured Dyson’s products. Dyson’s handling of the matter was criticised. The broadcast reported on legal action taken by a group of migrant workers in respect of exploitative working and living conditions.
In the initial hearing for the claim, Judge Nicklin ruled that the broadcast did not refer to the corporate claimants and did not defame Sir James Dyson.
When considering the issue of ‘reference’, Judge Nicklin, set out two categories through which reference can be established:
- If the claimant is named or identified by identifying material contained in the words complained of themselves (referred to as ‘intrinsic identification’).
- If the claimant is identified or referred to by particular facts known to individuals (referred to as ‘extrinsic identification’).
It was held that without consideration of extrinsic identification, the allegations in the broadcast were not and would not reasonably be understood to be directed at Dyson. It was decided that if the claimants (Dyson) were not the ‘target’ of the allegations, they would fail to establish ‘reference’ and would have no claim.
This decision was overturned by the Court of Appeal in February 2024 due to the interpretation of ‘reference’. The appeal raised the issue as to the test which the Court should apply to decide whether a defamatory statement has ‘referred’ to a person/entity.
The Appeal Judge held that instead of proceeding on the basis that identification had to come from the broadcast itself, and the absence of the corporate name meant the claimant could not establish they were the subjects of the allegations, Judge Nicklin should have instead reviewed the broadcast in the light of the knowledge of the claimant companies which a hypothetical reasonable viewer, aware of the companies, would possess.
It was held that despite not being named, Dyson was identifiable in the broadcast because a hypothetical reasonable viewer would have identified it by the information set out. Being named was therefore not considered a necessary requirement.
The claim was ultimately discontinued by Dyson on 23 August 2024 before the matter was concluded. However, the legal tests debated have provided food for thought nonetheless.
Comment
The takeaway point is that it is not always the case that a target of allegations needs to be named to be the subject of a libellous statement. Where there is doubt as to whether the claimant has been identified or referred to, it is necessary to consider what attributes of the claimant the hypothetical reasonable viewer, familiar with the claimant, would be deemed to know already.
