Courts considering the meaning of a statement in defamation cases in which the publisher is seeking to use the defence that the publication was on a matter of public interest should adopt a flexible approach, according to the authors of the latest edition of Duncan and Neill on Defamation.
The defence, detailed in section 4 of the Defamation Act 2013, replaces the common law Reynolds defence, which was abolished by section 4(6).
In defamation cases, courts operate under the so-called single meaning rule – the legal fiction under which the statement at the heart of a case is held to have only one meaning – even though it is accepted that language is inherently imprecise and that different people may have differing views as to the meaning of the words complained of.
The section 4 defence, say the authors, is intended to replace the Reynolds defence, although its formulation is different and requires a court to pay attention to a publisher’s belief about the public interest in making the publication.
They point out that in Bonnick v Morris ( 1 AC 300) the Privy Council took the view that the single meaning rule could not be applied without modification when a court was considering the Reynolds defence and the question of whether a journalist had acted responsibly.
Lord Nicholls had said in that case that the defence had to be applied “in in a practical and flexible manner”.
He had added: “The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard, of responsible journalism, had to be applied in all cases exclusively by reference to the ‘single meaning’ of the words. Rather, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views.”
The same approach should be adopted when courts are considering whether a defendant using the section 4 defence had a reasonable belief that the statement complained of was in the public interest.
The defence requires that a defendant has to show first, that publishing the statement at issue was in the public interest, and, second, that it was reasonable for him or her to hold that belief.
It would seem clear, say the authors, that where a defendant has to explain his or her reasons for believing that publication of a statement was in the public interest, he or she would also have to explain what the statement was intended to mean.
Thus, the court will have to assess the credibility of the defendant’s assertion about the intended meaning by having regard to the range of meanings – or imputations – the average person might attribute to the statement.
“If the meaning intended by the defendant falls within that range, it is difficult to envisage the court rejecting the defendant’s evidence as to their (genuine) belief in the intended meaning of the publication,” they write.
However, they also warn that the principle that a journalists should not be punished for making a wrong decision on the question of meaning on which different people could take different views should not be taken too far when a court is assessing the reasonableness of the belief that publication was in the public interest.
The public interest defence in section 4 of the Defamation Act 2013, and the requirement in section 1 that a statement must have caused, or be likely to cause, “serious harm” to the claimant’s reputation are the two major areas of the reforms introduced by the legislation which have been examined by the Supreme Court.
According to the authors, it is “now clear that s 1 of the Act has significantly raised the bar in terms of what a claimant in a defamation action must establish”.
In addition, section 11 of the Act, which effectively abolished jury trial in defamation actions, has brought about “major changes in practice and procedure capable of saving considerable time and expense in an appropriate case”.
The title of this new edition of Duncan and Neill of Defamation, the fifth, has been changed to become Duncan and Neill on Defamation and other media and communications claims.
This reflects the increasing tendency of claimants to bring claims over publications about which they are aggrieved in conjunction with other causes of action such as data protection or mis-use of private information, or even in place of defamation.
It has now been held that damages for injury to reputation may be awarded in a data protection claim – see Aven v Orbis Business Intelligence Ltd ( EWHC 1812 (QB)), which was decided in July this year – and such damages were also, controversially, awarded in a privacy claim.
As well as examining the major cases concerning defamation and the Defamation Act 2013, the book looks at important decisions concerning misuse of private information, malicious falsehood, and harassment. Development in data protection are examined in a completely re-written chapter 31.
The authors – Richard Rampton QC, Heather Rogers QC, Timothy Atkinson and Aiden Eardley – have continued the tradition of the previous four editions, keeping the writing tight and to the point, and concentrating on the principles at the heart of defamation and the other issues they examine.
The new edition has been expanded to 589 pages – slightly larger than the 520 of the fourth edition – and includes eight appendices covering all the Defamation Acts, other relevant statutes and statutory instruments, information on statutory absolute and qualified privilege, a short but interesting history of the distinction between libel and slander, and tables showing damages in defamation and malicious falsehood cases, and those involving misuse of private information claims.
This new edition of Duncan and Neill is the complete and essential volume for any practitioner in the field of defamation and publication.
It is also an excellent guide through the intricacies of defamation and associated issues for any working journalists and editors willing to expend a little effort to gain a much greater understanding of the minefield through which they are so often trying to find a safe path.
:: Duncan and Neill on Defamation, Fifth Edition, by Richard Rampton QC, Heather Rogers QC, Timothy Atkinson and Aidan Eardley, published by LexisNexis Butterworths in the Common Law Series, 589 pages, hardback, ISBN/ISSN: 9781474317221, price £319.99.