March 23, 2020

Mamadou Sakho is a professional footballer currently playing for Crystal Palace Football Club. Mr Sakho underwent an investigation as to whether he was guilty of doping and was cleared of all charges by UEFA. The World Anti-Doping Agency (WADA) decided not to appeal UEFA’s decision.

Mr Sakho then sued WADA for defamation in relation to two primary publications, namely two emails sent by WADA’s Senior Manager to two journalists at The Telegraph and two journalists at The Guardian newspapers.

At a trial of a preliminary issue as to the meaning of the words complained of in the emails, the court also had to decide whether the meaning should also be determined of the subsequent articles published by the newspapers, which amounted to republications, even though they were not being sued on.

The article published in The Telegraph contained the headline: “Exclusive: Mamadou Sakho cleared of being a drugs cheat after the World Anti-Doping Agency choose not to appeal Uefa verdict”, and included the words of the email sent to The Telegraph journalist.

The article published in The Guardian contained the headline: “Uefa slams Wada over incorrect handling of Mamadou Sakho’s drug test” and also included the words of email to The Guardian journalist.

Although Mr Sakho did not sue on the articles as separate causes of action, he relied on them “as republications of the words complained of, in support of [Mr Sakho’s] case on publication, serious harm and damages”.

Mr Sakho contended that publication of the emails to the four journalists alone met the serious harm threshold, but he also relied on the republication of WADA’s words in the articles to “millions of readers of The Telegraph and The Guardian”.

Mrs Justice Steyn DBE noted that there did not appear to be any precedent for determining the meaning of a republication that has not been sued on as a separate cause of action.

Steyn J observed that the effect of s 1(1) of the Defamation Act 2013 is that “the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant’s reputation”, as stated in Lachaux v Independent Print Ltd [2019] UKSC 27. Further, as also stated in Lachaux, establishing that a statement has caused serious harm “depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated”. The reference to harm that is “likely” to be caused is also a proposition of fact, referring to “probable future harm”.

Steyn J said that the gravity of the libel and the extent of publication are key factors in assessing whether the serious harm threshold is met. If, for example, an email published to one person conveys an allegation that “X is guilty of Y”, and the words of the email are then republished to one million people in a form and context conveying the meaning that “there were grounds for suspecting X of Y, but following a hearing he has been acquitted”, when assessing serious harm, it would be factually incorrect to treat the allegation that “X is guilty of Y” as having been published to one million people. If publication of “X is guilty of Y” to one person has not (on its own) caused, and is not likely to cause, serious harm to X’s reputation, it would be necessary to consider the inherent tendency of the words conveyed far more widely by the republication. The starting point is the meaning of those words.

Therefore, Steyn J said, where primary publication is to four people, whereas the republications are to millions, it is important to determine whether there is a stark difference in the level of gravity of the imputations conveyed by the republications compared to the primary publications. Further, given that no evidence beyond the publication itself is admissible in determining the natural and ordinary meaning of the words complained of, meaning can readily be determined as a preliminary issue. In this case, determining the meaning of the articles manifestly accorded with the overriding objective, she said.

Steyn J held that the meaning of the emails was that Mr Sakho was guilty of taking a prohibited, performance-enhancing substance. In the case of The Telegraph email, the meaning was also that Mr Sakho’s low degree of fault was such that it was uncertain whether it would justify more than the one month’s suspension he had already served voluntarily.

As for the articles, Steyn J held that they both meant that Mr Sakho had been absolved of taking a prohibited, performance-enhancing substance and that WADA maintained that the substance he took fell within a class on the Prohibited List, but it was not appealing the verdict. (Mamadou Sakho v World Anti-Doping Agency [2020] EWHC 251 (QB) (11 February 2020) — to read the judgment in full, click here).