Section 4 of the Defamation Act 2013 (“the Act”) gives defendants who have published material concerning matters of public interest a defence to an action for defamation. The archetypal defendant in this context would usually be a professional journalist who has published a piece of investigative journalism.
However, we have seen a huge increase in blogs and websites authored by so-called “citizen journalists” – often without the training and experience of professional journalists and the law is attempting to adapt to this changing public interest landscape.
First, in order to rely on the defence, a defendant must be able to demonstrate that the statement complained of was, or formed part of, a statement on a matter of “public interest” and the defendant must have “reasonably believed” that publishing the statement was in the public interest.
The public interest defence is a valuable one because it can apply regardless of the underlying truth or falsity of the statements complained of. Even if a defendant has ultimately got it wrong and published untrue statements that have damaged a claimant’s reputation, they are still entitled to rely on this defence if they have satisfied its requirements. This statutory protection gives recognition to the important role that properly conducted investigative journalism can play in shining a light on wrongdoing and injustice in society.
The Court of Appeal considered the statutory public interest defence for the first time in the case of Economou v De Freitas and clarified a number of important principles, namely how a court will determine whether a defendant’s belief was “reasonable”; and whether a defendant who is not a professional journalist should be dealt with any differently.
What constitutes a “reasonable belief” in the public interest?
Before the Act came into force and introduced the statutory public interest defence, there was an equivalent at common law known as the Reynoldsdefence. The defence was so called because it emanated from the judgment of the House of Lords in Reynolds v Times Newspapers when Lord Nicholls set out a non-exhaustive list of ten factors to be taken into account when deciding whether the defence of qualified privilege should be available to a defendant newspaper reporting on matters of public interest:
- 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.
Consideration of these factors amounted to a test of whether the journalism had been conducted in a responsible way, as essentially that was the quid pro quo for being able to rely on the defence.
However, one of the media’s criticisms of the Reynolds defence was that it was applied by the courts in too strict a fashion and so now the Act specifically directs the court to “make such allowance for editorial judgement as it considers appropriate” effectively shifting the focus to the belief of the defendant(s), as informed by their investigations (such as seeking comment from relevant parties).
So, whilst the Act effectively abolishes the Reynolds defence, the notes accompanying the Act anticipated that line of case law would constitute a “helpful (albeit not binding) guide to interpreting how the new statutory defence should be applied” and would be taken into consideration “where appropriate”. Economou has affirmed that the court will continue to have regard to the Reynolds factors when assessing whether the defendant’s belief was reasonable.
In the case of Economou, the defendant was a contributor to the pieces complained of (with the exception of one piece). Interestingly, the claimant chose not to sue the professional journalists or the media organisations who published/broadcast the material complained of. The Claimant’s argument that, because the Defendant’s conduct did not satisfy the Reynolds test – namely he had not sought the Defendant’s comment or taken steps to verify the truth of the allegations – it must follow that his belief was not reasonable and the defence must fail was rejected. It held that the Defendant could rely on the defence because, as a mere contributor, the defendant was entitled to leave the media organisations concerned to obtain such comment as the public interest required; the tone was measured; there was a degree of urgency; the Defendant had deliberately avoided naming Economou and the main target of his criticisms was the CPS. The judges were not saying that comment from Economou was unnecessary: they were saying that it was not de Freitas’ role to seek it. Whether the relevant media organisations would have been able to rely on the section 4 defence, had they also been sued, remains open to question.
A lesser standard for non journalists?
The Defendant in Economou was not a professional journalist, he was a father who had given interviews and press releases to newspapers about the factors he believed had contributed to the tragic death of his daughter.
On balance the Court held that, when exercising flexibility in its assessment of whether a defendant’s belief was reasonable under s4(1)(b), it was appropriate to take the defendant’s role into consideration and it was not compelled to hold every defendant to the same high standard of responsible journalism.
This is a pragmatic aspect of the decision that recognises the way that news stories are now commonly pulled together from a variety of sources or contributors including those who may never have received any formal journalism training, such as bloggers or social media commentators.
However, the courts have made it clear that they will expect higher standards, under section 4, where a citizen journalist does more than contribute. Where a person goes one step further, choosing to write and publish material, they are likely to be held to the same standards as an investigative journalist writing for an established newspaper. This was made clear in the recent case of Doyle v Smith – this concerned a “citizen journalist” who had his own blog the “Caddington News”. He wrote various articles about an individual working with Luton Rugby Football Club who was attempting to release money from an existing site in order to obtain a new site for the club.
The Defendant got all sorts of things wrong in his articles, so a truth defence was never going to be successful. Instead, he relied on section 4 of the Act and failed. He argued that he should not be held to the same standards as a professional journalist as he was a citizen blogger. The judge disagreed. The case highlights that a person writing their own blog will often be held to the same standards as professional journalist writing for a tabloid. He had failed to seek proper comment, he had failed to investigate facts properly and the pieces were riddled with inaccuracies.
Economou and Doyle confirm that consideration of the Reynolds factors and the defendant’s role are two elements that will go into the court’s assessment of whether a defendant reasonably believed that publishing the statement complained of was in the public interest. While every case will be extremely fact sensitive, these recent cases make it clear that: (1) a lay person making a contribution to an article, rather than being the architect of the piece, is unlikely to be held to the same standards as a professional journalist/publisher. It is likely to be considered a reasonable assumption by a contributor that the newspaper or broadcaster will ensure that relevant comment is included to attempt a balanced and accurate piece; (2) where a person is actually writing and publishing material, they are likely to be held to the same standards as a professional journalist/media organisation. This is in keeping with the idea that section 4 should remain the domain of responsible journalism.
This post originally appeared on the Himsworth Scott website and is reproduced with permission and thanks