MUSINGS: The ordinary reasonable reader

The individual at caption may not really exist. He, or she is no more than an anthropomorphic conception of justice, much like the reasonable man in negligence cases by means of whose presumed conduct it is determined whether there has or has not been a breach of the duty of care.

The ordinary reasonable reader, on the other hand, is used to determine the meaning of the words used where it is alleged that these convey an imputation defamatory of the claimant in defamation cases. This conception has been variously formulated. One English case describes him or her thusly-

“The ordinary, reasonable reader is not naïve; he can read between the lines. But he is not unduly suspicious. He is not avid for scandal. He would not select one bad meaning where other, non-defamatory meanings are available”.

And, according to another-

“The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs…”

I have often wondered whether the ordinary reasonable reader in the Commonwealth Caribbean is of an identical bent, given our notorious readiness to read the worst into nearly every circumstance and to leap to the defamatory rather than innocent conclusion.

This precise issue arose in a relatively recent Jamaican case, Deandra Chung v Future Services International Ltd et al.

We have all seen those types of notices in the press before. One business concern or another publishes that a former named employee is precisely that (no longer employed by the concern) and that the public is thereby warned not to transact any business with that individual where he or she claims to be acting on behalf of the company.

Ms Chung voluntarily resigned from the defendant company at which she had been employed on February 6, 2012. A few days later, the company, FSI, caused to be published the following words in the Daily Gleaner-

“NOTICE – The public is hereby advised that Miss Deandra Chung is no longer employed to Future Services International Ltd and is therefore not authorized to conduct any business on our behalf.”

Ms Chung was not amused. She filed an action for libel, as it then was called in Jamaica, pleading that the words meant and were understood to mean that “the Claimant’s termination of employment was such as to warrant notification to the public at large and that the Claimant was at the time (post resignation) engaging in conduct which was detrimental to the company and which warranted the public being warned”.

She also pleaded that there was an innuendo (hidden meaning) to that effect and sought to justify these claims by the following particulars-

“It is commonly known by right thinking Jamaicans that such publications is [sic] warranted in circumstances where ex-employees are dishonest, thieves, fraudsters and are purporting the [sic] act for their ex-employers for the benefit of the ex-employees.”

The company denied that the words were capable of bearing the meanings pleaded by Ms Chung and that they meant precisely what they said and nothing more.

At the trial of the matter, the judge, McIntosh J.,  dismissed the claim with costs and Ms Chung appealed, notably on a ground that “(b). The judge failed to demonstrate that he considered the words complained of in the context of the Jamaican society and the meaning that would be ascribed to the words complained of by the average Jamaican”

In a most lucid judgment and relying on previous authority, Justice of Appeal Morrison who gave the decision of the Court restated the well-accepted principles that in considering a publication that is alleged to be libelous, the court should give the words complained of the natural and ordinary meaning that they would have conveyed to the ordinary,

reasonable and fair-minded reader; that is, a person who is not naïve, unduly suspicious or avid for scandal and that applying this criterion, the judge must determine the single meaning which the publication might be apt to convey to the notional reasonable reader and to base his consideration on the assumption that this was the one sense in which all readers would have understood it.

In applying these principles to the facts of the case, he concluded, “In my view, the ordinary, reasonable and fair-minded reader of this notice would take it to mean no more than it said, viz, that the appellant was no longer employed to the first respondent and that she was as a result not authorized to conduct any business on its behalf. Such a reader would appreciate, I think, that persons leave the employment of other persons for a variety of reasons, including, as in this case, resignation of their own volition, or other reasons not necessarily reflecting on their honesty or competence. It seems to me that it would take a reader who is either unduly suspicious or especially astute to discover scandal at every turn, to, assuming the worst, attribute to the notice in this case the meanings that (a) the appellant’s employment was terminated for misconduct by the first respondent and (b) after the termination, the appellant was engaging in conduct detrimental to the first respondent, making it necessary to warn the public”.

Indeed, even if the notice had been held to be defamatory of Ms Chung, the company might still have been able to raise the defence of qualified privilege in that the notice was published in the common financial interest of both the publisher and the recipient; the company wanting not to incur liability through Ms Chung’s agency and the public being careful to avoid entering into a transaction that the company would not wish to honour.

I chose to discuss this case in this space today because I do believe that most Barbadian readers commonly tend to think, as Ms Chung’s counsel pleaded in his particulars of Jamaicans, that that such publications are warranted only “in circumstances where ex-employees are dishonest, thieves, fraudsters and are purporting to act for their ex-employers for the benefit of the ex-employees.”

If so, then we may not be acting as ordinary reasonable readers according to English law.  Should we adopt a different standard? How many of my readers believe that a press report of any person charged means that he or she must be guilty of the offence alleged and that his or her subsequent acquittal must have been owed purely to a technicality… or worse?

Barbados Advocate

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