03/02/2020 Donovan v Gibbons [2014] EWHC 3406 (QB) (21 October 2014) Defamatory or not? 8. Ms Jolliffe suggested that the words were not defamatory at all. She pointed to two routes to that conclusion. One was that the words reflected only on the claimant's company; the other was that they reflected only on the company's product (the pony). 9. The difficulty with the former approach is that the claimant was named as the seller, and that there is no mention in the words of the company. As far as the person watching the video is concerned, she could be (indeed probably would be) taken to be a sole trader, and possibly not even a trader at all. 10. As for the latter argument, Mr Dean submitted that the words and images necessarily imputed that she had sold goods which were below standard and likely to have adverse consequences for the customer. He referred to Tugendhat J's ordering of the varieties of defamatory statement in Thornton v Telegraph Media Group at [34], and suggested that on any view the material complained of fell into the category of business or professional defamation which the judge described thus: "Imputations upon a person, firm or other body who provides goods or services, that the goods or services are below a required standard in some respect which is likely to cause adverse consequences to the customer…". It seems to me that Mr Dean's submission is plainly correct. In other words, the material complained of is defamatory of the claimant at least in the sense that it reflects on her business reputation. The further question, whether it also reflects on her in her personal character, remains to be determined. 11. I stress that I am only deciding this issue at common law, not under s1 of the 2013 Act. Fact or comment? 12. As I have said, the defendant seeks to defend the material complained of as an expression of opinion that it was scandalous that the claimant sold the dangerous pony shown in the video as being suitable for children. 13. Both counsel draw my attention to the case of Yeo v Times Newspapers Ltd [2014] EWHC 2853 at paragraphs [84] to [98], where the judge usefully gathered together the relevant principles which apply when distinguishing fact from comment. Among those principles are these: (1) The statement must be recognisable as comment as distinct from an imputation of fact: Gatley para 12.7; (2) Comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc": Branson v Bower [2001] EMLR 15 at [26]; (3) The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams Press [1958] 2 QB 275, 313; (4) The subject matter and context of the words may be an important indicator of whether they are fact or comment: Singh, above, at [26], [31]. 14. In addition, the comment must indicate, at least in general terms, the facts on which it is based. The Supreme Court made it clear in Joseph v Spiller [2011] 1 AC 852 at [104]-[105] that it is not necessary that the reader should be able to judge for himself how far the comment was well founded; but it is necessary that he should be able to understand what the comment is about. A fair balance has to be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making that criticism. That is particularly important on the internet, where people can make public comment about matters which are far from generally known, and where it will often be impossible for other readers to evaluate the views expressed. 15. Ms Jolliffe makes much of the context of the words and video. Her starting point is the fact that this is a publication on YouTube, which she characterises as being comparable to other popular review sites such as TripAdvisor. She submits that the video and its accompanying words fall into the category of a review, which by its nature is likely to involve opinion and comment. Here, she says, the reader is www.bailii.org/ew/cases/EWHC/QB/2014/3406.html 3/6