Whose insult is it anyway?

Roger Pearson reports on a case which will affect satirical journalism and clarify what constitutes a libel

When it finally reaches full High Court hearing, the pending libel action in which actor and film director Steven Berkoff is suing journalist Julie Burchill and The Sunday Times over an article which he claimed indicates he was "hideously ugly" is bound to create its fair share of attention.

But a preliminary court skirmish in the case has its own legal significance and has resulted in important pointers from one of the country's senior libel judges, Lord Justice Neill, in respect of the material to be decided by libel juries and the criteria that constitute a libel.

The claim centres on the reviews of Burchill. In a Sunday Times article of January 1994 relating to the film The Age of Innocence she wrote that film directors from Hitchcock to Berkoff were notoriously "hideous looking people". And later that year in a review of Berkoff's film Frankenstein, she described the monster in the film as "a lot like Berkoff, only marginally better looking".

On the basis that readers would conclude he was "hideously ugly", Berkoff launched his libel action.

Burchill and The Sunday Times claimed that to call a person "hideously ugly" was not being defamatory and asked for the action to be dismissed.

But Sir Maurice Drake refused their application and now his decision has been upheld by Lords Justices Neill and Phillips in the Court of Appeal.

Neill said it would be open to a jury to decide whether a statement that a public figure who made part of his living as an actor was not just physically unattractive but actually repulsive, was defamatory.

Justice Millett dissented, taking the view that "chaff and banter" were not defamatory and that people should be allowed to poke fun at each other without fear of litigation.

The ruling makes it clear that a statement solely about someone's physical appearance, if it could expose that person to ridicule, could be defamatory and was a matter to be decided by a jury. The implications could be significant for a number of satirical publications and TV and radio programmes.

The legal team for Berkoff were counsel Manuel Barca, who was instructed by Simon Gallant, partner in media law at Mischcon de Reya.

There may yet be an appeal to the House of Lords on this interlocutory aspect of the case. A petition has been lodged seeking leave from the Law Lords to appeal the ruling of the Appeal judges.

But as things stand, Gallant said the fact the Appeal Court has found it could be defamatory to expose someone to ridicule in the way Berkoff alleges is a significant signpost in defamation. He added it was the first time in 70 years that the courts had examined this aspect of defamation law.