When is a libel not a libel? When it’s just vulgar abuse


What constitutes a libel is a well-established principle.  It requires publication to a third party of a defamatory statement which identifies the claimant as the subject of that statement.

It’s also pretty universally understood that despite that nice, neat, definition, it can be very difficult to determine where the line falls between a statement which is defamatory, and one that is not.  And this is especially so when one is considering whether a rude or offensive comment has crossed the line from what is quaintly known as ‘vulgar abuse’, to defamation.

This was one of the issues considered by Mrs. Justice Steyn in her recent judgment in Jeremy Vine’s claim against Joey Barton.

Broadcaster and journalist Jeremy Vine needs little introduction.  And to many people, former professional footballer and manager Joey Barton is similarly well known.  Vine is suing Barton for libel and harassment as a result of the latter’s 14 posts on “X”, a hashtag that became a trending topic on “X”, and a post on Barton’s GoFundMe page.

The case before Steyn J. was a trial of preliminary issues, to determine the natural and ordinary meanings of the publications; to decide whether they were statements of fact or opinion; and most importantly (at least for present purposes) to ascertain whether or not they were defamatory at common law.

In her judgment, Steyn J ruled that the majority of the publications bore meanings which are defamatory of Mr. Vine, with one not being defamatory at all, and two not being defamatory because they constituted “mere vulgar abuse”.

But what does that actually mean? Mere vulgar abuse refers to statements which although rude and offensive, do not convey a defamatory meaning.

A more detailed definition was confirmed in the recent case of Blake v. Fox as: “Insults or abuse which convey no defamatory imputation are not actionable as defamation.  Even if the words, taken literally and out of context, might be defamatory, the circumstances in which they are uttered may make it plain to the hearers that they cannot regard it as reflecting on the Claimant’s character so as to affect his reputation because they are spoken in the ‘heat of passion, or accompanies by a number of non-actionable, but scurrilous epithets, e.g. a blackguard, rascal, scoundrel, villain, etc.’ for the ‘manner in which the words were pronounced may explain the meaning of the words.’”

The key question therefore, has to be whether the language, in the context of the publication as a whole, conveys more than insult?

If, as in Vine v Barton, some of the publications complained of are determined to be vulgar abuse, this is not a defence as such; rather it is a facet of their meaning - an interpretation.

In a case decided in 2008, Mr. Justice Eady noted that: “From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse.  That is less common in the case of more permanent written communication, although it is by no means unknown.  But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their head and reacting in the heat of the moment.  The remarks are often not intended, or to be taken, as serious.”

We’ve written in this column before about the irrelevance of intention when it comes to meaning, and whilst the comments of Eady J above seem to go against this, it’s worth remembering that context is everything.

Words written or spoken in the heat of the moment are often chosen without thought and though this in itself is not a defence to a claim in libel it’s sensible to bear in mind that it will form part of the wider context to be considered by the Court when determining where to draw that all important line between defamation and vulgar abuse.

And finally, I know you will be wondering what it was that Joey Barton wrote which has caused so much litigation.

His posts were variations of the theme that Jeremy Vine is a “bike nonce” i.e. that he “has a sexual interest in children”, and it is on these defamatory meanings that the case will now proceed.

And the (non-defamatory) vulgar abuse?  The first was:

Has the Bike Nonce had a brain injury? @theJeremyVine selected amnesia?

The second was a little more oblique:

Did you cycle to that clinic @the JeremyVine? #CoVidnonce #bikenonce

Can you spot the difference?  It’s not an easy distinction to make!

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