Sakho v WADA: Meaning of republications can be a preliminary issue

In February, the Media and Communications Court was asked to determine the meaning of allegedly defamatory statements in Premier League footballer Mamadou Sakho’s claim against the World Anti-Doping Agency (“WADA”). In doing so, it determined the meaning of articles relied upon by Mr Sakho in order to demonstrate the seriousness of the harm he had suffered as a result of statements made by WADA, but which were not pleaded as separate causes of action.

Background

In 2016, Mr Sakho, who at that time was playing for Liverpool, tested positive for Higenamine, a fat-burning substance present in dietary supplements. WADA determined that the substance was on its prohibited list and the European football governing body, UEFA, provisionally suspended Mr Sakho for 30 days while the matter was investigated. Mr Sakho was ultimately cleared of committing an anti-doping violation by UEFA’s disciplinary committee after it held that Higenamine was not expressly banned by WADA and should not otherwise be included on its prohibited list. WADA chose not to appeal UEFA’s decision.

Although Mr Sakho did not serve a full ban, during his provisional suspension he missed Liverpool’s Europa League final and, he claims, lost out on a place on France’s Euro 2016 squad. He did not play for Liverpool’s first team again and was eventually sold to Crystal Palace.

In 2019, Mr Sakho and MS Top Limited (Mr Sakho’s image rights company) issued negligence and defamation proceedings against WADA, claiming £13 million in damages for lost earnings and the reduced worth of Mr Sakho’s personal brand following his departure from Liverpool. WADA denies all liability, arguing that Mr Sakho’s move and any consequent losses were caused by other factors, including disciplinary issues and personal clashes with Liverpool manager, Jürgen Klopp.

The defamation claim

The primary publications about which Mr Sakho complains are two emails sent by WADA to journalists at The Telegraph and The Guardian in 2016 and 2017 (the “Emails”). In the Emails, WADA maintained the view that Higenamine is a prohibited substance and claimed that it had not appealed UEFA’s decision because it was unclear whether it would obtain a significantly higher sanction than that already served by Mr Sakho.

Mr Sakho’s claim also relies on the verbatim republication of the Emails in each newspaper (the “Articles”). It is important to note, though, that he does not rely upon the Articles as giving rise to a separate cause of action to the Emails, but is seeking to use them to evidence the serious harm caused by the Emails and to increase the damages flowing from those original publications.

In February 2019, the Court was asked to determine as a preliminary issue: (i) whether the meaning of only the Emails, or also the Articles, should be determined at a preliminary stage; and (ii) the meaning of the Emails and, if relevant, the Articles.

The Court’s decision

Issue 1: should the meaning of the Articles be determined as a preliminary issue?

The requirement to prove that a defamatory statement must cause serious harm to a claimant’s reputation in order to be actionable was introduced under s.1(1) of the Defamation Act 2013. Whilst it is usual for the meaning of statements complained of to be considered as a preliminary issue in defamation claims, the Court had never before considered the meaning of republications relied on solely as part of a claimant’s case in relation to serious harm and / or damage at the preliminary stage.

Steyn J, agreeing with counsel for WADA, considered that the meaning of the Articles would be relevant to the Court’s assessment of whether the damage caused to Mr Sakho’s reputation by WADA’s publication of the Emails meets the serious harm threshold required to make his claim actionable. As part of this assessment, the Court would need to understand “whether there is a stark difference in the level of gravity of the imputations conveyed by the republications compared to the primary publications”.

Steyn J therefore held that the meaning of the Articles should be determined as a preliminary issue notwithstanding the fact that they were not relied upon by Mr Sakho as a separate cause of action to the Emails. She observed that nothing in the CPR precluded the Court from taking this approach and that that the lack of any precedent was simply due to the fact that the issue had not arisen since the serious harm threshold had been introduced.

Issue 2: the meaning of the Emails and the Articles

Steyn J determined that the natural and ordinary meaning of both Emails was in essence that Mr Sakho had taken a prohibited, performance-enhancing substance in breach of the WADA Code. With regards to the Articles, however, she noted that the republication of the Emails must be considered in the context of the Articles as a whole. As they related to Mr Sakho, she concluded that the essential thrust of the Articles was that: (i) Mr Sakho been absolved of taking a prohibited substance; and (ii) although WADA maintained that Higenamine was banned, its position had failed to stand up to UEFA’s scrutiny, a point which WADA is not appealing.

Comment

We are used to seeing the seriousness of the harm caused by the publication of a statement being assessed in isolation, with the wider impact of subsequent republications being considered during the assessment of damages only. This judgment, however, sets an interesting precedent whereby the seriousness of the harm caused can be judged not only by the impact of the original publication of the statement complained of, but also any republications relied upon by the claimant to show how widespread its dissemination, and the damage caused, have been.

If the decision goes unchallenged, Claimants will need to take increased care when choosing which republications to include in their claim as they now run the risk of their meaning being determined as a preliminary issue, with potential consequences for the measure of harm caused and damages. In particular, where a defendant publishes a defamatory statement to a major media outlet with the expectation that it will be republished (as in this case), it seems that their liability can now be almost automatically mitigated if that media outlet takes a balanced approach that somehow removes the sting of the original libel.

> Read the full judgment here

If you have any questions about the issues raised in this article, Simmons & Simmons has a dedicated reputation management team who can assist. Please get in touch with the contacts listed on the side of the page.