Remedies in defamation and the public interest: some thoughts from the vault – Godwin Busuttil

I was interested to read Mr Justice Warby’s remarks about remedies in defamation cases in his recent address to the Annual Conference of the Media Law Resource Center. 

What he said was this:

Secondly, may I mention an issue about remedies.  A recent paper by Adam Speker Restrictions on Media Communications in the Interests of Truth and Privacy refers to one gap, which has been recognized for some time: the inability to obtain vindication in respect of a serious defamatory factual allegation, if the defendant chooses to defend it on grounds of public interest rather than truth.  Mr Speker cites the case of Economou v de Freitas, about which – as the trial judge – I should make no comment.  But whatever the merits of that case as an illustration, there is clearly force in the suggestion that the law should, in appropriate cases, enable a person whose reputation has been seriously injured by a false statement to secure a correction, even if the statement related to a matter of public interest and was reasonable at the time.  It might be said that the public interest favours a correction in such a case.

English defamation law offers a limited range of “discursive” remedies – those which involve the making of an apology or some other corrective or mitigating statement about what was initially published.  There does not seem to be any unifying principle, when it comes to remedies of this kind.  It is not obvious, in principle, that such a remedy should only be available if the complainant can also establish a right to damages or compensation.  The requirements for different remedies can in principle be different. Regulators can provide discursive remedies, even where a defamation claim would fail.  But perhaps there might be a remedy at law. (emphasis added)

Reading this prompted two particular thoughts: first, that the concern being articulated was one I shared; and second, that back in 2011 I had given a little help to William Bennett, a colleague in chambers, on a paper he was writing which touched on this subject.  This was a paper he had been asked to prepare by the Bar Council’s Law Reform Committee by way of a response to the Ministry of Justice’s Consultation Paper calling for evidence for the Parliamentary Joint Committee on the Draft Defamation Bill

I couldn’t find a copy but fortunately William’s filing system is better than mine.  In fact, the paper contains a detailed proposal for how the law might better address the situation under consideration.  It is worth reproducing in full:

Clause 2: Responsible publication in the public interest

26. Clause 2 appears to codify the existing common law. We suggest that the formulation of the defence set out in the draft Bill ought to be reformulated in order to introduce an element of fairness to claimants and keep society better informed.  The reform proposed would not compromise the rationale of the responsible publication defence; to reduce the chilling effect.
27. The responsible publication defence constitutes a very serious abrogation of an individual’s Article 8 right to reputation. It begs the question: is it just to deprive a person who has been defamed of any chance to vindicate his reputation if the article which defamed him was on a matter of public interest and the relevant newspaper carried out a responsible investigation prior to publication, even if it transpires that the allegation made by it had been false?
28. A claimant will take on the daunting task of bringing a defamation claim because he will know that the allegation is untrue; this will ordinarily sustain him through the protracted process of taking a claim through to trial against a newspaper. However, consider the position of a claimant who has set out to vindicate his reputation who is faced by a responsible publication defence:

28.1 The truth of the accusation made against him becomes irrelevant. All that matters is whether the article concerned a matter of public interest and whether it was responsibly investigated.  If the claimant wants to vindicate his reputation he will have to go to trial in the hope that the newspaper fails to prove that it investigated the story against him responsibly.  The court will not consider whether the allegation was true or not; such evidence will be inadmissible.  The claimant will rightly not care what steps were taken to investigate the story, he will just want some form of public acknowledgement that it was false.

28.2  Whilst the claimant may be able to take a view before commencing litigation as to whether or not the article in question related to a matter of public interest, he will have no idea as to how the relevant journalists investigated the story. It will be quite possible for them to have acted responsibly (by ticking the responsible publication boxes) and for the article to be untrue (which is why the defence was devised).  Thus, if the claimant wants to spend up to several years enduring the stress of litigation and the fear of losing the claim (and possibly his home), he will have to set out to refute something in which he has no interest: that the article was in the public interest and investigated responsibly, when all he (quite reasonably) wants is an acknowledgement that the allegation made against him was false.

30. If the claimant loses an action in which the defence was that of responsible publication, he will be left with a serious allegation having been made against him without having been given the chance to establish that it was false and society will most likely be left believing that the original allegation was true. There will be situations where the impact upon a claimant will be such that he or she will receive death threats or even have to go on the run and yet will still be deprived of an opportunity to vindicate their reputation.¹ The aim of the responsible publication defence is to reduce the chilling effect.  If, for instance, a newspaper has done its best to verify a story on a matter of public interest, it will be more ready to publish it if it knows that it will have a defence even if it later discovers that the article was false.  It will be more willing to publish the story because, on the information before it, it will know that it has a good chance of seeing off a claim for defamation even if it transpires that it could not prove that the published allegation was true.  This will allow more stories in matters of public interest to be published (some of which will be true but some of which will not; society will never know which is which).
31. The unfairness to the claimant (and to the public) which arises from the use of the responsible publication defence could be ameliorated, whilst still achieving a meaningful reduction of the chilling effect, by making provision for the following proposal. A provision could be inserted in Clause 2 to the effect that if the defendant wishes to rely solely upon the responsible publication defence, it must voluntarily publish a statement within three months of notification of the claimant’s claim, so far as it is reasonably able, with reasonable prominence to the effect that the allegation was false (a “Statement of Falsity”).²  The claimant will then be able to either:

31.1   end his claim and receive his costs up to the date upon which the Statement of Falsity was published but no damages (his reputation having been meaningfully vindicated by the voluntary publication of the Statement of Falsity); or

31.2  carry on with the claim and, if he wins, to receive damages and costs in the normal way (i.e. if the responsible publication defence ultimately fails).

Whilst the above proposal provides for the defendant to pay the claimant’s costs up to the date of the publication of the Statement of Falsity, so long as such a Statement is made early on in the litigation these ought not to be substantial.3

32. Sometimes a defendant will choose to plead a justification/truth defence as well as a responsible publication defence. In pleading a justification defence a defendant will set out in full detail his case as to why the allegation in issue is true and will make a Statement of Truth at the end of the relevant legal document in support of that assertion.  This is regarded as a very important step in litigation.  It is of itself damaging to the claimant; now that the newspaper has examined the allegation in the cold light of day and, no doubt following further investigation, it has asserted to a court of law that it is true (and may be relying on matters of which it was unaware at the time of publication).  Real unfairness against a claimant will arise if responsible publication and justification/truth defences are both pleaded and the responsible publication defence is heard first and succeeds.  The trial as to whether the article was a responsible publication in the public interest will not have considered whether the article was true or not.  If the claimant tried to give evidence that the allegation was positively untrue, that would be ruled to be inadmissible.
33. Where a justification defence is pleaded in addition to a responsible publication defence, the defendant could not be expected to make a Statement of Falsity. In such circumstances the truth/justification defence ought to be tried first.  If the newspaper loses the justification defence, it would have to publish a Statement of Falsity in order to continue with its responsible publication defence.  However, if a claimant chose to forego the option of winning damages, he could end his claim at that stage and receive his costs but no damages.
34. Clause 2 ought to include a provision to the effect that the relevant allegation ought to have been investigated to such a degree that the publisher reasonably concluded that the allegation in issue was true. This avoids the rather sterile “ticking of boxes” and instead focuses on the attempts being made, in the particular circumstances surrounding publication, for the publisher reasonably to satisfy itself that the allegation is true.
    1. In a case in which a Tamil hunger striker was accused by the Daily Mail and the Sun of secretly eating cheese burgers during his hunger strike he received death threats from fellow Tamils who wrongly believed, having read the defamatory articles, that he had betrayed them (see BBC1 documentary See You in Court broadcast on 17 May 2011). In Lillie & Reed v Newcastle City Council [2002] EWHC 1600 (QB) two nursery nurses were wrongly accused of paedophilia. As a result they had to flee their homes and go into hiding for fear of physical attack.  In both cases there was a public interest in the relevant allegations.  If the journalists concerned had acted responsibly in publishing the allegations (regardless of the falsity of those allegations) a responsible publication defence could have succeeded and the claimants in both cases would consequently have had their lives blighted and given no opportunity to obtain vindication.
    2. As an alternative to a Statement of Falsity, a defendant might be asked to publish a statement to the effect that: following publication the newspaper has reviewed the allegation and has decided not to stand by the truth of it. The allegation is therefore unproven, the newspaper has decided to undertake to the claimant not to repeat it in the future (a Statement of Neutrality). However, we believe that would still leave an unjustifiable stain upon the claimant’s reputation.  We conclude that the presumption of innocence/the right to reputation ought to prevail unless someone is willing to prove otherwise.  As said elsewhere in this paper: let he who asserts prove.
    3. Alternatively, the Committee might consider the option of simply providing that the claimant and defendant bear their own costs but this might be said to be unduly unfair to a claimant – particularly where the publication complained of was made further to a commercial enterprise such as a newspaper, which will normally be the case – and would represent a problem for an impecunious claimant trying to obtain CFA funded representation.

These ideas seemingly fell on deaf ears at Westminster in 2011.  But if the question of the range of remedies available in defamation cases is now to be reviewed, whether within Mr Justice Warby’s Media and Communications List Users Group Committee or outside it, the proposal described above may be thought to represent a useful starting point for any further debate.

Godwin Busuttil is a barrister specialising in media and communications law at 5RB.