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Identification

“The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff.”
— Lord Atkin in Knupffer v London Express Newspapers Ltd [1944] 1 All ER 495 (HL) at 497.

The essentials

What is the test?
If the recipient—sometimes described as the ‘publishee’—would reasonably understand a statement to be about a particular person, that person will have been identified.  It is an objective test.  This means the Court will assess the issue from the perspective of an ordinary reasonable person.

What if no names are used?
A plaintiff can often establish identification even if they aren’t named explicitly.  They only need to show that the statement reasonably identified them to readers (or even some readers).  So, a plaintiff might be identified by reference to their initials, nickname or a satirical reference.  In some cases, a reference to a person’s employment position may be enough.  In others, simply the surrounding facts and circumstances might lead readers to identify the plaintiff.

What if the publisher doesn't intend to refer to the plaintiff?
This is strictly irrelevant.  The publisher doesn’t even need to have the plaintiff in mind, for they to be identified.  This comes back to the fact that it is an objective test.  There have been many cases involving completely accidental identification.

That said, a defendant’s lack of intention to identify the plaintiff might be relevant to other issues, such as damages and certain defences.

What if only a few people can identify the plaintiff?
Sometimes, a plaintiff will sue on the basis that, although a particular statement did not identify them to readers generally, they were identified by a certain audience who, unlike other readers, were in possession of certain facts that allowed them to identify the plaintiff.

For example, a newspaper article might set out certain misconduct committed by an unnamed person.  The general reader might have no idea who this person is.  As a result, the plaintiff will not have been identified to the general reader.  But on the other hand, the article might give sufficient details that, perhaps, co-workers of the plaintiff might reasonably infer that it is the plaintiff to whom the newspaper was referring.  The plaintiff will have a legitimate claim in respect of his or her identification by these people, but at trial they will need to establish the facts that allowed them to be identified in this way.

What about statements directed at groups of people?
These statements can be defamatory, but only if the words published would themselves reasonably lead people acquainted with the plaintiff to the conclusion they were one of the people referred to.  So, if one wrote: “All police are corrupt”, police officers at large would not be in a position to say they were identified.  On the other hand, if one wrote: “All police in Louisville are corrupt”, then, assuming Louisville is a small enough place that the statement could only be referring to a handful of police officers, each of those individuals would likely be able to establish identification.

As a rough guide, it will be difficult for someone in a group of over 20 people to bring a claim – that is, it is unlikely readers could associate a criticism of such group with a particular individual.

That said, readers might understand a statement criticising a particular group to identify those in leadership positions.  And further, sometimes those in a group of more than 20 people might be identifiable.  For example, “Those brainwashed parishioners of Sally’s congregation are out in force tonight, spewing her dishonest propaganda.”

Masterclass

Legal practice tips
For publishers:

  • Our takeaway: If you think that a neat metaphor or allegory will avoid someone being identified, think again.  At least have other people read your draft and see if they can identify your subject.

For litigants:

  • If identification may be in issue, the plaintiff should give full particulars that disclose how they were identified.  Equally, if defendants think the particulars are inadequate, then strike out or summary judgment might well be available.
  • Sometimes parties get confused about cases involving limited identification.  Many people assume that if the plaintiff claims to have been identified only by a limited audience, it must follow the claim has to brought upon true-innuendo meanings.  There may be cases where this arises, but not normally.  The extrinsic facts pleaded to support true-innuendo meanings identify how words were understood in a different way to a certain class of reader vis-à-vis ordinary readers.  The principles for pleading extrinsic facts in true-innuendo cases are virtually the same as pleading a case of limited identification, but in fact the claim will normally be brought upon the statement’s natural and ordinary meaning.  That is, the general reader might well understand the statement to bear a defamatory natural and ordinary meaning, but they don’t know to whom it relates.  By contrast, those in possession of the extrinsic facts are able connect those meanings to the plaintiff.  And hence, the plaintiff has a claim based on natural and ordinary meaning, but only to those people in a position to draw the link.

Recommended reading

For identification of individuals within a group, and identification through a series of publications: see pages 12–14.

For identification derived through a series of publications (also relevant to bane-antidote doctrine in meanings): see paragraphs [42]–[51].

Now, just because something is published about an identifiable person, that’s not enough for a defamation claim.  The juicy part comes next: it’s time for some linguistic gymnastics in our discussion of defamatory meaning.