On 21 November the Court of Appeal delivered a major decision on the statutory public interest defence for defamation claims, in the case of Alexander Economou v David de Freitas  EWCA Civ 2591.
That defence, the full title of which is ‘publication on matter of public interest’, was introduced with Section 4 of the Defamation Act 2013 to replace the common defence of “responsible journalism” – dubbed the ‘Reynolds’ defence after the seminal House of Lords decision in Reynolds v Times Newspapers Ltd  2 AC 127. Since its introduction, both journalists and media law practitioners have awaited appellate court guidance on the defence’s scope, including the extent to which it can protect contributors as well as professional journalists.
The facts of the case, which have been described as “striking and tragic”, are as follows. In 2012 the claimant, Mr Economou, had a brief relationship with the defendant’s daughter, Eleanor de Freitas. She subsequently accused the claimant of rape. Although he was arrested, no charge was ever brought. In 2013, the claimant brought a private prosecution against Ms de Freitas, alleging she had made a false accusation against him with an intention to pervert the course of justice. The Crown Prosecution Service (CPS) took up that charge, which Ms de Freitas denied, but in the days leading up to her trial in April 2014, Ms de Freitas tragically took her own life.
An inquest was planned for Ms de Freitas’s death. However, in November and December 2014 her father, the defendant to the libel claim – having been advised to “go public” by his solicitors – made a series of statements to the media concerning the Coroner’s decision not to consider the involvement of the CPS within the scope of its inquest. The claimant brought libel proceedings over seven publications arising from those statements: two BBC broadcasts, and five newspaper articles (four in The Guardian, including an article written by the defendant himself, and one in The Daily Telegraph).
Of the seven publications, four were published in November 2014. Three were published in December 2014, following both an interview by the defendant to the Mail on Sunday in which he gave his side of the story, and a statement from the Department of Public Prosecutions (DPP) that was supportive of the CPS’s decision to prosecute.
The crux of the allegations complained of was, to quote in summary, that there were:
“strong grounds to suspect that the decision of the CPS to prosecute Ms de Freitas may have been a mistake, as there were strong grounds to doubt there was an evidential case against her. The implication so far as [the claimant] is concerned was that there were strong grounds to suspect that he was guilty of rape, and had falsely prosecuted Ms de Freitas for perverting the course of justice.”
At first instance, Mr Justice Warby dismissed the claim in relation to all but two of the publications for lack of serious harm to the claimant’s reputation. The remaining two articles – both from December 2014 – were found to give rise to a prima facie cause of action in libel. However, the Judge found that the defendant could rely on the public interest defence in relation to both of those publications  EWHC 1853 (QB)).
The statutory public interest defence, in essence, is a test of two parts. For it to succeed, the defendant needs to establish first that the publication “was, or formed part of, a statement on a matter of public interest” (Section (4)(1)(a)), a relatively straightforward threshold and one that was met with relative ease in Economou. However, the defendant must also establish, secondly, that he or she “reasonably believed” it was in the public interest to publish the statement complained of (Section 4(1)(b)). This second limb of the test was the main focus here. It has prompted many to await judicial guidance, given that, aside from the requirements for the Court to “have regard to all the circumstances of the case” (Section 4(2)) and to “make such allowance for editorial judgement as it considers appropriate” (Section 4(4)), there is little statutory guidance as to how a belief in the public interest can be deemed a reasonable one.
In undertaking his assessment of that defence, Mr Justice Warby followed a path that many had expected: being guided by Lord Nicholls’s ten point ‘checklist’ from the now superseded common law Reynolds defence. Expressed to be non-exhaustive, it provides a list of factors to be taken into account by the Court, when assessing whether a defendant could rely on a “responsible journalism” defence.
Over the last 18 years, that ‘checklist’ has become well-rehearsed for media law practitioners and journalists alike, but merits being repeated once again:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication, including the timing.
Although the 2013 Act saw a conceptual shift from this idea of a defendant’s “responsible journalism” to its “reasonable” belief in the public interest, nevertheless Mr Justice Warby took the view that the factors above should continue to guide the Court. Indeed, there appeared to be some measure of agreement between the parties in Economou on the need to do so.
One key area of divergence, however, concerned the extent to which a defendant must be held to the standard of the Reynolds factors notwithstanding that he may not be a professional journalist. Another, closely related to this, was the extent to which he is entitled to rely on media organisations if his role is limited to that of a “mere contributor”. At first instance, the claimant argued for a rigid application of the Reynolds factors, maintaining that since the defendant’s conduct fell short of the standard they set for responsible journalism – he had not, for instance, sought the claimant’s comment before making his statements, or taken steps to verify the truth of the allegations – it must follow that his conduct was unreasonable and the public interest defence should fail.
By contrast, the defendant had argued, successfully, that a requirement for the Court to have regard to “all the circumstances of the case” must encompass the circumstances of the defendant, and that the extent to which he or she can be reasonably expected to adhere to the Reynolds factors must be “bespoke, depending on the precise role that the individual plays” . Assessed on that footing, the defendant’s belief that his actions were in the public interest was reasonable, because he reasonably believed he was discussing matters of public importance, that is, the conduct of the CPS, and was in an exceptional position to do so given his proximity to the tragic events.
In reaching this conclusion, Mr Justice Warby had regard to the fact that the defendant had faced “stark” options. He may have wished to comment on the CPS’s decision-making, and to have focused his attention on this as opposed to the claimant’s reputation. However, criticising the CPS presented the defendant with an immediate practical difficulty, in that he could not do so without running the risk of impliedly defaming the claimant.
On appeal, the defendant unsuccessfully cross-appealed Mr Justice Warby’s determination of the meaning of the Guardian article that he had written, arguing that it bore a lesser defamatory meaning than the one found. The claimant also sought unsuccessfully to appeal the Judge’s dismissal of claims in respect of the November articles on serious harm grounds.
The substance of the appeal was the claimant’s challenge to the approach that “when considering what was reasonable in all the circumstances, as a mere contributor, rather than a professional journalist, the defendant was entitled to rely on the media organisations he approached to publish his contributions” , to take appropriate steps to verify the allegations, seek the claimant’s comment and put across his side of the story. As Lady Justice Sharp identified, this effectively came down to a submission that a defendant cannot pray in aid of “sub-optimal” journalism to make up for the fact that he had seriously defamed the claimant; nor should a defendant be able to rely on the fact that he was merely contributing to a process of publication, in which others would have the responsibility of ensuring that the publication meets appropriate standards to serve the public interest.
In raising such a ground of appeal, the claimant submitted that Mr Justice Warby’s approach had been wrong for several reasons, but chiefly because it effectively created a form of “contributor immunity”  for the defendant. He claimed the Judge had not given sufficient regard to the seriousness of the allegations, the fact that the defendant was closest to knowing the truth, and the absence of evidence that he had positively relied on the media to comply with the Reynolds factors in circumstances where he had not. In particular though, it was argued that Mr Justice Warby was mistaken to have excused the defendant’s failure to present the gist of the claimant’s position, on the basis that it was instead the media’s role to do so.
It was submitted that a consequence, and risk, of such an approach is that it can allow someone who is “pursuing a media strategy on inadequate and misleading information”  to be pardoned of the consequences of defaming someone, in circumstances where that information has never been the subject of responsible, journalistic inquiry, or the level of scrutiny necessary if one is to strike a balance between reputation and freedom of expression on matters of public interest.
In dismissing the claimant’s appeal, Lady Justice Sharp acknowledged that the issue “raises difficulties on both sides of the equation, free speech on one side, and reputation on the other, that must be acknowledged” . Where a public interest defence succeeds, a claimant is left with no remedy whatsoever for their damaged reputation, regardless of the underlying truth or falsity of the statements complained of. Indeed it was recognised by the Court that in an “era of distrust and ‘fake news’, it is more important than ever that the public should, so far as possible, be put in the picture as to where the truth, or some approximation of it, lies”. Nevertheless, it was recognised that the court must have regard to all of the facts of the case, and on the admittedly unusual facts of this case, Mr Justice Warby was entitled to reach the conclusions that he did. He had made no error in concluding that it would have made little sense for the defendant to have included the claimant’s “side of the story”, and was able to take into account the fact – a highly significant fact, it transpired – that the defendant had little “limited room for manoeuvre” in seeking to comment on the CPS.
The Court of Appeal’s judgment in Economou confirms a number of things about the proper application of the public interest defence. First and foremost, and as many anticipated when the defence was first codified, it reemphasises that the court should pay close regard to the traditional Reynolds factors when assessing the reasonableness of a defendant’s belief. However, it should exercise considerable flexibility in that assessment, having regard to “all the circumstances of the case”. In particular, such flexibility should extend to an appraisal of the defendant’s role, and the court should not be compelled to hold each defendant to the same high standard of “responsible journalism”.
The decision ought therefore to be of some comfort not only to professional journalists and publishers, but to citizen journalists, bloggers and regular contributors who may never have practiced journalism in the traditional sense. They too might avail themselves of a defence if they can be shown to have reasonably believed what they were doing was in the public interest, notwithstanding that their conduct might fall short of someone who is trained and experienced in journalism. Nonetheless, the Court of Appeal has made it clear that this will not afford citizen journalists immunity to report on contentious subjects without risk, nor contributors the freedom to rely entirely upon the professional judgement of others. As its judgment in Economou affirms, “all will depend on the facts” .
Dominic Garner is a Senior Associate at Carter-Ruck