Citizen journalists, standards of care, and the public interest defence in defamation – Jacob Rowbottom

18 12 2018

The public interest defence under section 4 of the Defamation Act 2013 replaced the old defence of Reynolds privilege. A number of cases have since established that the old criteria for responsible journalism under Reynolds is still relevant when assessing the reasonable belief requirement of the new defence.

The responsible journalism test in Reynolds was built around the traditional media, referencing the methods and processes used by newspapers and broadcasters. An important question then is the extent to which the section 4 defence should require non-professional and non-media publishers to meet the standards the standards of a professional journalist.

Two recent decisions, Economou v de Freitas and Doyle v Smith, provide some guidance on this question, but seem to pull in slightly different directions. While Economou emphasises the flexibility of the section 4 defence, Doyle holds that the standard of care is objective and does not make allowance for inexperience or other personal qualities.

Economou

The issue in Economou concerned statements made by the defendant in interviews published in the national media. The defamation action was brought against the person that was interviewed, rather than the media outlets that published the story. The defendant relied on the public interest defence, but argued that he could not be held to the same standards as a professional journalist in checking the statement prior to publication.

In applying the defence at the trial, Warby J considered what steps were reasonable for a ‘mere contributor’, rather than a professional journalist, to take. Warby J found that a contributor could expect the media outlet publishing the interview to carry out checks and include the other party’s side of the story. While the defendant did not meet the standards of the professional journalist, he had acted to the standard expected of the source or contributor. The defence therefore succeeded. The claimant appealed on this point, arguing that it created a type of ‘contributor immunity’.

The Court of Appeal rejected the claimant’s argument, with Sharp LJ emphasising the importance of the ‘role of the defendant’ (among other factors) when determining if the publisher’s belief was reasonable. The ‘role’ in this case was of an interviewee/source rather than a reporter. Moreover, Sharp LJ stated that Warby J’s approach did not result in the absence of any standards for a contributor and noted that the defendant had carried out some investigation into the merits of the other side of the story.

While the standard under s.4 is flexible, it does not let those outside of the professional media off the hook, and some level of care is still demanded. This is particularly important, Sharp LJ noted, as the publication of false statements can be particularly damaging on the digital media:

The fact that information is present on the Internet, gives it permanence and reach, which may have profound implications for the life and future prospects of the person defamed. A successful public interest defence leaves a claimant whose reputation is damaged without vindication, damages or the ability to obtain injunctive relief.

Moreover, she noted that the interest of the public in receiving correct information is more pressing than ever in the current ‘era of distrust and “fake news” ’.

Doyle

The facts of Doyle v Smith are very different and concerned four articles by a citizen journalist who published an ‘online community newspaper’. The publications made allegations about a property developer in relation to a rugby club’s proposed move to new premises. Warby J found the publications made very serious allegations about an attempt to defraud members of the rugby club, which came close to asserting guilt (but fell short of such an outright allegation). The defendant sought to rely on the s.4 defence, which was rejected by the judge. In relation to one of the articles, the judge found the statement included a ‘deliberate falsehood’ (at [79]), so dismissing the defence for failing to meet the ‘reasonable belief’ standard was a relatively straight-forward exercise.

Warby J went to comment on the application of section 4 to those outside the professional media. He suggested that the standards of the professional journalist could apply to the citizen journalist:

There is, as I said in Economou at [242], obvious force in the argument that a “citizen journalist”, composing and publishing what purports to be investigative journalism, should be expected to conform to the requirements of Reynolds before he can claim the benefit of section 4.

This statement may seem surprising given the emphasis on the flexibility of section 4 in Economou. The point can be explained by looking further at Warby J’s comments in Economou (in the High Court), in which he stated that the defendant could have been held to the standard of the journalist if he ‘had acted as a journalist, composing and publishing what purported to be investigative journalism’. However, on the facts the defendant had done no such thing and his role was (as stated above) closer to that of a source.

In Doyle, Warby J sought to clarify the significance of the ‘role’ of the publisher in the relation to the reasonable belief part of the defence:

“The circumstances I listed in Economou at [241] include the “role” of the defendant, but they do not include his qualifications, experience, or other personal qualities or attributes. And I do not accept one line of argument advanced on behalf of Mr Smith, namely that the circumstances relevant to the Reasonable Belief requirement include “(1) the status and characteristics of the publisher including (a) whether or not s/he/it is a professional media organisation/journalist, (b) the journalistic training and experience of the person concerned … .”. It is a well-established principle of the law of negligence that when the circumstances are such as to impose a duty of care on a person, the standard of care remains the same, regardless of the individual’s personal attributes”.

The line reasoning appears to be that section 4 is applied flexibly, so that a line can be drawn between a contributor and a journalist, but an objective standard is demanded of all journalists (broadly defined).

The line of argument runs that just as a non-professional driver is held to the same standard as a taxi driver in negligence, the same standards should apply to professional and non-professional journalists in defamation. There are, however, problems if this means the same objective standard is applied to all publications. If anyone publishing content to the world at large is required to meet the traditional standards of responsible journalism (set out in Reynolds), then s.4 would offer fairly limited protection to freedom of speech.

Warby J’s comments in Doyle do not, however, point to such a high standard of care for all publications. In negligence, the standard of care is objective, but varies according to the particular task or activity undertaken, particularly where the task involves some special skill. The standard of care expected in the legal profession is therefore that of the competent lawyer (rather than the reasonable person more generally). The standard of care can sometimes vary depending on the post held by the defendant. To demand that any publisher meet the standards of a competent professional journalist for the purposes of s.4 in defamation law would be to equate all publications to the world at large with the task undertaken by the professional media. Rather than taking such a uniform approach, different types of publisher can be seen as engaging in different tasks. Along these lines, Warby J acknowledged the standard of care is partly shaped by the nature of the publication, stating that he could take account of its character ‘as a local news website, in the nature of a community operation’.

Discussion

If the analogy with negligence is followed, then the court should also look at the way the publisher held him or herself out to the public. Accordingly, a person making a comment on a newspaper website or on social media need not be held to the standard of the professional journalist, as the person does not hold themselves out to be a reporter. By contrast, higher standards could be expected of an amateur that publishes an online newspaper that claims to follow the conventions of journalism and asserts some level of authority.  As Warby J stated in Economou, the standard of care is higher where a person purports to be engaged in investigative journalism.

The position of the publisher is therefore relevant in deciding what task/activity was being undertaken, which in turn sets the standard of care. The central point in Doyle is that once the court has set the standard of care as defined by the task, further leeway cannot be provided on account of the defendant’s ‘lack of professional skill, training, or expertise.’ The line between the two matters is not, however, so clear. A publisher’s lack of professional status – the very thing that Warby J rules out in the application of section 4 – could be relevant in defining the task being undertaken and in deciding what the defendant purported to be doing.  For example, a person could run a website commenting on local news and make clear that it is not a professional news site, not regulated and that its content reflects the personal views of the author. The publisher may not be able to claim leeway due to a lack of experience, but could argue that he or she was not engaging in the same enterprise as a professional journalist.

The challenge is that publishing on the digital media is not a uniform activity and can include activities ranging from professional news coverage to informal conversations. Despite the slightly different emphasis given in Economou and Doyle, both decisions allow for some flexibility in the standards demanded under s.4. However, neither case had to conclusively resolve the standards expected of the non-professional publisher, and the issue will no doubt return to the courts in the future.

Jacob Rowbottom is a Fellow of University College, Oxford and is the author of Media Law (2018).


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18 12 2018
‘Citizen journalists, standards of care, and the public interest defence in defamation’ | Private Law Theory - Obligations, property, legal theory

[…] “The public interest defence under section 4 of the Defamation Act 2013 replaced the old defence of Reynolds privilege. A number of cases have since established that the old criteria for responsible journalism under Reynolds is still relevant when assessing the reasonable belief requirement of the new defence …” (more) […]

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