Berkoff v Burchill [1996] EWCA Civ 564 (31st July, 1996)

Actor-director Steven Berkoff sued for libel after a journalist called him 'hideously ugly'. The Court of Appeal held that whilst insulting, the words were capable of being defamatory as they could expose him to contempt, scorn or ridicule, thus lowering his standing.

Facts

The plaintiff, Mr Steven Berkoff, a well-known actor, director, and writer, brought a libel action against Ms Julie Burchill, a journalist (the first defendant), and Times Newspapers Limited (the second defendant), the publisher of The Sunday Times. The action arose from a film review written by Ms Burchill published on 28th May 1995. In the article, reviewing the film ‘Frankenstein’, she wrote: ‘The creature is a lot like the movie, limp, lumpy and boringly over-the-top, but it’s a real shame that, having gone to all that trouble to make a monster, they didn’t give the job to someone who was hideously ugly to begin with, like Steven Berkoff.’ Mr Berkoff claimed these words were defamatory. The defendants applied to have the claim struck out on the grounds that the words were not capable of holding a defamatory meaning. The master and the judge at first instance both refused to strike out the claim. The defendants subsequently appealed to the Court of Appeal.

Issues

The central legal issue for the Court of Appeal to determine was whether the words complained of, specifically calling someone ‘hideously ugly’, were capable of being defamatory in law. The court had to consider if such words could be seen to lower the plaintiff’s reputation in the estimation of right-thinking members of society by exposing him to hatred, contempt, or ridicule.

Judgment

The Court of Appeal, by a majority, dismissed the appeal, holding that the words were capable of being defamatory. The reasoning of the judges differed.

Lord Justice Neill (Majority)

Lord Justice Neill, applying the classic test for defamation from Parmiter v Coupland (1840), considered whether the words were ‘calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule’. He acknowledged that spoken words which are merely abusive are often not defamatory, but argued that the element of ridicule was key in this case. He concluded that an attack on a person’s appearance could indeed be defamatory.

‘It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor is capable of lowering his standing in the estimation of the public and of making him an object of ridicule. The words are not simply a statement of opinion that the plaintiff is ugly; the words ‘hideously ugly’ are used as a form of vilification which, it is open to a jury to find, would bring the plaintiff into contempt and ridicule.’

Lord Justice Phillips (Majority)

Lord Justice Phillips agreed with the dismissal of the appeal. He analysed the development of the test for defamation and observed that the meaning of ‘defamatory’ has been extended over time. He focused on whether the words would cause the plaintiff to be ‘shunned and avoided’. He found that the words went beyond a mere insult and could be construed as imputing a repulsive physical appearance, thereby exposing Mr Berkoff to ridicule on a national scale.

‘In my judgment, the words complained of were capable of carrying the defamatory meaning that the plaintiff was not merely physically unattractive but was physically repulsive. To call a man ‘hideously ugly’ is to launch a physical insult against him. I am not satisfied that the defendants are correct to contend that such an insult is incapable of being defamatory.’

Lord Justice Millett (Dissenting)

Lord Justice Millett provided a strong dissenting judgment. He argued that the words constituted mere abuse and were not defamatory because they did not attack the plaintiff’s reputation or character. He reasoned that ‘right-thinking people’ would not think less of a person simply because they were described as ugly. He warned that allowing this claim would open the floodgates to litigation over personal insults.

‘The plaintiff’s complaint is not that the defendants have stated that he is a bad actor. His complaint is that they have stated that he is ugly… In my judgment, the words complained of are not capable of being defamatory. They are words of abuse, which do not and are not calculated to lower the plaintiff in the estimation of right-thinking people.’

Implications

The decision in Berkoff v Burchill is significant for clarifying that an imputation of ugliness can be capable of a defamatory meaning, particularly when it exposes the individual to ridicule. The majority’s reasoning affirmed that the tort of libel is not confined to attacks on a person’s character or professional competence but can extend to attacks on physical appearance which lower their public standing. The case highlights the importance of the ‘ridicule’ limb of the classic defamation test. However, the powerful dissent from Lord Justice Millett underscores the ongoing legal tension between protecting reputation and preserving freedom of speech, including the right to make abusive or insulting comments that do not necessarily injure reputation.

Verdict: Appeal dismissed.

Source: Berkoff v Burchill [1996] EWCA Civ 564 (31st July, 1996)