148 Miss Julie Burchill was a journalist and writer who was retained to write articles about the cinema for The Sunday Times in London. Mr Steven Berkoff was a well-known actor, director and writer. He brought an action for damages for libel against Miss Burchill and the newspaper on the ground that in two articles written by Miss Burchill and published by the newspaper, statements were made which meant and were understood to mean that he was "hideously ugly" and therefore were defamatory, since they would tend to expose him to ridicule and/or would tend to cause other people to shun or avoid him.
149 In the first article, Miss Burchill wrote and the newspaper published a review of the film The Age of Innocence, writing: "… film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people." Nine months later Miss Burchill reviewed the film Frankenstein. In this review, which the newspaper published, Miss Burchill described a character in the film called "the Creature". She wrote:
The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature—no bolts in the neck or flat-top hairdo—and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.
150 The judge at first instance held that the meaning of the words pleaded by the plaintiff was capable of being defamatory and he dismissed the defendants' application for the action to be dismissed. The defendants appealed, contending that the characteristic of the tort of defamation was injury to reputation and the fact that a statement might injure feelings or cause annoyance was irrelevant to the question whether it was defamatory.
151 Neill LJ and Phillips LJ (Millet LJ dissenting) dismissed the appeal. In his reasons, Neill LJ reviewed a number of old cases, including Zbyszko v New York American Inc (1930) 228 App Div 277.
152 Mr Zbyszko, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article contained a photograph of him in a wrestling pose and under it the words: "Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique". In close proximity there was a photograph of a "hideous looking" gorilla. The plaintiff's action was struck out at first instance but reinstated on appeal, because the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):
Any written article is actionable … if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others
