Bond v BBC

11 March 2009, Queen's Bench Division, England

Mr. Justice Eady (cf. also Mosley v News Group Newspaper and Carrie v Tolkein) had to rule on the 'natural and ordinary meaning' (cf. Skuse v Granada Television Ltd [1996] EMLR 278, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and Gatley on Libel and Slander (11th edn) at paras. 32.1-32.12, referred to this the judgment) of words complained in the libel action relating to the Panorama broadcast on 19 September 2006 called "Football's Dirty Secrets".

The overall message of the broadcast (or, as the learned judge elegantly put it, the 'overwhelming "tang" of the programme') was to demonstrate that "bungs" to managers and other club officials were rife. There was little dispute between the parties that the programme conveyed the impression that the claimant was expressing interest in prospectively receiving an impermissible payment (or "bung" in football parlance).

The principal dispute was whether there could be an additional meaning to the effect that the claimant had also been guilty of accepting such payments in the past and/or that there were grounds to suspect him of so doing. As the judge put it

"..would the reasonable viewer, while inevitably noting his interest in prospective "bungs", conclude that this was a new departure or momentary lapse? Alternatively, would he or she decide that the programme implied that this was part of a pattern, providing evidence that he was one of those on whom the programme focused as being "at it" already?"

The claimant was covertly recorded saying

"I totally understand where you're coming from. I understand what you're looking for, and certainly myself and Harry would be open to listening to, you know, in order to come to some arrangement, if you like, where whatever we need, we'll make sure that we call you, and what you really want is that we call you and only you."

In the judge's opinion, while the words do not go as far as a "Chase Level One" meaning (i.e. a positive conclusion of guilt, cf. Chase v News Group Newspapers Ltd [2003] EMLR 11), the natural inference is that the claimant was "in the frame" as one of the prime suspects to whom the Defendant was drawing attention ("Chase Level Two" meaning i.e. strong grounds to suspect) and that

"Most reasonable viewers would think it stretching credulity too far to interpret what they have seen as an innocent being tempted by corruption for the first time."

And

"why else is the Claimant in the programme? Otherwise, I would expect to see some distinction drawn between the Claimant's appearance on the programme, and the reasons for it, and that of other participants. If he is not there to support the basic proposition that "bungs" are now endemic in the game, what is his role? Obviously, he is not accused expressly of receiving "bungs" in the past, but since he would appear to the viewer to be expressing interest in future corrupt payments, the inference could readily be drawn that this is part of a pattern of conduct - rather than his being tempted or succumbing for the first time in his career."

But the judge said that it would be "making a leap too far" to conclude that the claimant actually received "bungs" in the past even though his words and demeanour would give rise to a strong suspicion that he had been ready to do so. The judge added that

"Of course, he did not leap at the offer or make a frank confession, but one would not expect a man in his position to do so. If he was interested in the proposal, he would still be expected to proceed with caution in the company of strangers whose trustworthiness was yet to be established. He certainly did not rebuff the approach or make clear that he would not have anything to do with such a scheme."

The judge also said that the 'denial section of the programme' was plainly not to be taken as exculpatory and would come across to most viewers as 'something of a formality; indeed, as being perfunctory gesture towards balanced coverage'.

"After all, if "he was not interested in receiving bungs", and "no one he has ever worked with has taken a bung", there would be no story worthy of an exposè on prime time television."

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