Taylor Hampton explains Jigsaw Identification in Defamation Matters

Background

This article discussed Jigsaw Identification in Defamation Matters.

Identification is an essential requirement that must be met when bringing a defamation claim in England and Wales. A Claimant must be able to identify themselves as the person defamed. The statement does not have to explicitly name the Claimant, it is sufficient that an ordinary reasonable reader would understand the words to refer to them.

At times, a Claimant will be able to identify themselves as the person defamed without difficulty through the inclusion of their name, address, or specific reference to the relationship between themselves and the accused. On other occasions, a Claimant might not be able to readily identify themselves when they have not been directly referred to. However, a combination of different, accessible information can enable readers to piece together a person’s identity. This has been established through the concept of jigsaw identification, which is defined as “the ability to identify someone by using two or more different pieces of information from two or more sources – especially when the person’s identity is meant to be secret for legal reasons.”

Decisions

In 2006, the High Court heard a libel claim against two tabloid newspapers. The case, which was the first to establish jigsaw identification, was Cole v News Group Newspapers Ltd (18/10/06, SCCO, unreported). The case concerned a headline published by the now defunct The News of the World entitled “Gay as you Go.” The central theme of the publication wrongly alleged that two Premiership footballers, one capped several times for England, and a music industry figure, had been caught on camera involved in a “homosexual orgy.” The article was false and defamatory.  The newspaper subsequently published a photograph one week later of the two men obscured. Significantly, it transpired that the original photograph in question, which showed Cole with a DJ, had been already available to view on several internet websites and had in fact been discovered by many people. Consequently, Cole was able to establish that when read alongside this material, he had been wrongly identified as one of the men. It was sufficient for Cole to say, “Everyone thinks it’s me.”

On a similar note, in the case of  Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB), a BBC broadcast linked an unnamed senior Conservative politician to false and libellous allegations of sex abuse claims. As a result, many X (formerly Twitter) comments wrongly identified Lord McAlpine as being the politician in question. Whilst he was not identified in the BBC report or indeed by any national newspaper or national broadcaster, Lord McAlpine was nevertheless able to establish that he had been libelled by the BBC. That the cumulative speculation about his identity was so rife left no doubt who the identity of the senior Conservative politician was alleged to have been. Significantly, it was sufficient for Lord McAlpine to argue that he had been identified by inference as the individual in question.

 

These two cases illustrate that a combination of information appearing in different publications can reasonably lead people to conclude that a particular person is being referred to. If we now consider the recent judgment handed down by Mr Justice Chamberlain in Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 1189 (QB), which has provided further guidance as to how the court will approach the issue of jigsaw identification, this will become clear.

In this case, an application by the Attorney General for an injunction against the BBC was granted to prevent the broadcaster from disclosing information that would identify an MI5 source, Mr. X, who allegedly had been guilty of domestic violence. The injunction was approved because the intended publication would create a real and immediate risk to X’s life or safety. As Mr Justice Chamberlain established in the following judgment, whilst it remains a question of balance when determining whether jigsaw identification is applicable, the correct standard to be applied is whether the publication of information is “likely to lead to” the identification of an individual.

“One piece of information may on its own seem innocuous, but when taken together with other information known to a particular malign actor, it may lead to the identification of an individual. But, although the court must be alive to the threat of jigsaw identification, it must also be astute not to allow the threat to justify a blanket prohibition on disclosure of any piece of the jigsaw.” (p.24)

It becomes clear that, whilst there should not be an unjustified interference with the ability to convey the core elements of a story, the primary concern of the court is whether the publication of information serves to identify an individual directly or indirectly. In this case, Mr Justice Chamberlain was also keen to emphasise that this is, of course, a matter of judgement that experienced broadcasters and publishers should be aware of when considering what information is publicly known, and the risk of identification flowing from further cumulative disclosures.

Conclusion

Jigsaw identification serves as a good reminder of the challenges involved in conveying information where there is a real risk that doing so may directly or indirectly enable readers to identify an individual. Regardless of whether the publication of information is identifying at a moment in time, the court will nevertheless consider its impact where prior or subsequent information remains visible and is known. It is therefore vitally important to monitor what others have or may yet publish. Falling foul in this regard might result in claims in defamation where it leads to unjust damage in reputation. Consequently, it remains a balancing exercise between, on the one hand, the decision to publish information which creates a real risk of identification occurring, and, on the other hand, omitting a piece of information and compromising your reporting.

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