03/02/2020 Donovan v Gibbons [2014] EWHC 3406 (QB) (21 October 2014) provided with what is obviously an amateur video of the product; the factual basis for the complaint is explained (i.e. that the seller sold the product as suitable for children); and the opinion is expressed that the product was dangerous (as evidenced by the video), and that it was scandalous that the seller had acted as she had. She argues that the words 'downright dangerous' are not comment on the behaviour of the claimant in behaving as she did (as 'scandal' is) but refer to the pony, and are themselves an expression of opinion. 16. I do not find the review analogy convincing. There is an obvious difference between a review on a site devoted to reviews, like TripAdvisor, where the starting assumption is that the review will be an expression of opinion, and a YouTube posting which is designed to make a free-standing point. Mr Dean invited me to take judicial notice of the sort of material that YouTube contains, which I think he was entitled to do (YouTube being broadly as familiar nowadays as, for instance, the typical contents of a newspaper), but he was also able to show me screenshots of the video, which showed the related YouTube material which the user's computer brought up when the defendant's video was watched: it consisted mainly of clips of polo and football matches. 17. As Mr Dean observes, it is effectively common ground, at least on the pleadings, that the material complained of contains at least one allegation of fact, namely the allegation that the claimant sold the defendant a dangerous pony as being suitable for children. It was argued by the defendant's solicitors in correspondence (letter dated 21 February 2014) that the central factual issue was whether the pony was dangerous to ride, and it is pleaded at paragraph 9.2(3) of the Defence, as part of the particulars of fact supporting the comment, that the pony was dangerous for the defendant's children to ride. However, Ms Jolliffe now seeks (see eg skeleton argument #21) to characterise the dangerousness as part of the comment on the behaviour of the pony rather than as part of the allegation of fact. 18. It seems to me that whether or not the words 'downright dangerous' are comment on the behaviour of the pony as shown in the video or a description of the pony is probably not very important, because, as Mr Dean submits, the person watching the material will have seen at once that the horse was in fact dangerous and unsuitable for children. In other words, whether or not there is comment that the pony is dangerous, the fact of its dangerousness is immediately apparent. With an animal which is sold for use by children, there must, he suggests, be a bright line as to what is dangerous and what is not, and it is perfectly clear on which side of the line this pony falls. There is therefore a defamatory allegation of fact: that the claimant sold a dangerous pony as being suitable for children (ie the 'business' defamation, considered above). That, I think, is correct. Meaning 19. The criteria for the determination of meaning are very well established. The locus classicus is the judgment of Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 13 at [14]: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. 20. However, the second Jeynes principle does not mean that the court must always choose the least defamatory meaning available: see McAlpine v Bercow [2014] EMLR 3 at [66], where Tugendhat J explained that if there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. Just as it would be unreasonable for a reader always to adopt a bad meaning when a non-defamatory meaning was available, so it would be unreasonable and naive always to adopt the less derogatory meaning. www.bailii.org/ew/cases/EWHC/QB/2014/3406.html 4/6