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Defamation cases frequently call upon the courts to strike a balance between a defendant’s Article 10 right to freedom of expression and the claimant’s right to reputation, protected by Article 8 of the convention. This is most keenly felt in cases concerning matters of public interest. Last month the Court of Appeal heard an appeal from the claimant in a bitter libel battle originating from the most tragic of circumstances.[1] This case focussed on two important questions: first, whether publishing allegations of rape was capable of causing serious harm to the reputation of the alleged, but unnamed, perpetrator; second, whether the public interest in discussing such allegations outweighed the claimant’s right to reputation.
In December 2012 the claimant, Alexander Economou, had a brief relationship with the defendant’s daughter, Eleanor de Freitas. In January 2013 she went to the police and reported Mr Economou raped her. He was interviewed under arrest and bailed. No charges were brought and the investigation came to an end. In August 2013 Mr Economou brought a private prosecution against Ms de Freitas, alleging that she had accused him falsely with intent to pervert the course of justice. This prosecution was subsequently taken over by the Crown Prosecution Service. Ms de Freitas pleaded not guilty. Four days before the trial was due to begin in April 2014, she took her own life. Her father, David de Freitas, sought to expand the inquest into her death to include an examination of the role of the CPS in prosecuting a mentally vulnerable person. The coroner ruled against this, but left open the possibility of reconsidering later. To raise publicity, Mr de Freitas began a media campaign, running through November and December 2014. This featured press statements, BBC interviews, and a self-written article for The Guardian. Mr Economou sued for libel across seven publications. Despite never being named, he contended he was identifiable and that, in essence, the publications meant “he was accused of having falsely prosecuted Ms de Freitas for perverting the course of justice by accusing him of rape, when the truth was that he had raped her.”
At trial it was held that five of the seven publications had been defamatory of Mr Economou, with two causing serious harm to his reputation. The defence of truth was not advanced. Instead, Mr de Freitas relied on the statutory defence of publication on a matter of public interest, under s.4 of the Defamation Act 2013. This indicated Mr de Freitas accepted there was no proof Mr Economou was a rapist and therefore had not falsely brought the private prosecution against Ms de Freitas. S.4 replaced the Reynolds defence [2] of responsible publication in the public interest with a new defence of publication on a matter of public interest. Under the Reynolds defence a publisher could defeat a defamation action if they could demonstrate that the publication of the defamation was part of an effort to communicate matters of public concern, and was the product of responsible journalism. S.4 substituted the test of responsible publication for a requirement the defendant reasonably believed that publishing the statement complained of was in the public interest. “Public interest” was not defined under the Act, but has been interpreted broadly by the courts. Lord Bingham described the public interest as ‘matters relating to the public life of the community and those who take part in it’.[3] Although somewhat tautological, this definition has the benefit of elasticity. It was accepted pressing for the inquest to consider the role of the CPS was a matter of public interest. Additionally, Warby J determined that Mr de Freitas reasonably believed that publishing the defamatory statements was in the public interest. The appeal brought by Mr Economou raised two main points: first, it was not reasonable for Mr de Freitas to believe that publishing the defamatory statements was in the public interest; second, all five defamatory publications satisfied the requirement of serious harm. Additionally, a respondent’s notice challenged Warby’s J finding that the self-written article bore a defamatory meaning. Given the recent Court of Appeal judgments on serious harm[4] and the appellate test for determining meaning,[5] it is the consideration of s.4 which will prove most ground-breaking in this case and the result will set the standard for judging the reasonableness of a defendant’s belief in publishing material in the public interest.
The Court of Appeal’s approach in Economou will go some way to determining if Parliament was fundamentally recasting the law with a brand-new defence, merely tinkering round the edges, or whether it was a pointless use of legislation, codifying good law, gaining nothing but uncertainty. One of the rationales behind the Reynolds defence is that responsible journalism can allow the public interest to be best served, minimising the risks of libel, whilst ensuring matters of significance may be published without fear of falling foul of a defamation suit. Lord Nicholls’ eighth criterion in Reynolds, ‘Whether the article contained the gist of the [claimant's] side of the story’,[6] has been seen as essential to the success of the defence. Including the claimant’s account demonstrates that an explanation has been provided for the allegation with which they have been confronted. Furthermore, presenting the claimant’s answer to the charge can in part draw the sting of the libel, albeit without amounting to a complete antidote. Lord Nicholls suggested that a publication which fails to offer the other side of the story would face ‘an uphill task’ in making out the defence.
Protecting the right to reputation is, inevitably at times, incompatible with the right to publish information in the public interest. The Reynolds checklist is important for the simple reason it seeks to avert avoidable defamation. Fulfilling the requisite checks inherent in responsible journalism ought to reveal the majority of falsehoods, limiting the scope for harmful assertions to make it to publication without justification. However, as the defence may exculpate a defendant on the basis of taking due care in crafting their publication, it is important to consider what aspects of carelessness are insufficient to allow a claimant to vindicate their good name. There has certainly been no suggestion to give precedence to any single action which would permit any and all publications in the public interest complying with that requirement, but it is apparent that significant failures in responsibility may prove fatal to the defence. It is therefore left to the Court of Appeal to decide on a particular instance whether to favour freedom of speech or the right to reputation. Additionally, they are being asked a simple question of statutory interpretation; whether a defendant’s reasonable belief that publishing a defamatory statement was in the public interest is the same as responsibly publishing in the public interest?
At the heart of the appeal heard last week, Mr Economou was challenging Warby’s J ruling on who should bear the burden of ensuring the claimant’s version of events was presented. For most of the articles Mr de Freitas was a quoted source or interviewee, contributing to the publication, but clearly not responsible for the publication in its entirety. In such circumstances Warby J is likely to have been correct in finding that it was reasonable for the defendant to leave any checks to the respective media publishers. However, the self-written article may not attract the same benefit. As the sole author, Mr de Freitas was in control of what material made it into the finished product, The Guardian acting as the platform for publication. At the time of writing this article Mr de Freitas was in possession of Mr Economou’s version of events, undermining the argument that The Guardian should have been responsible for ensuring both sides of the story were covered in the publication. To exculpate Mr de Freitas from including information within his knowledge on the basis he should have relied on a third party to amend his article is not to hold all defendants to the standard of professional journalists, but to assess what information the defendant actually possessed at the time of publication, and what would be reasonable for them to include in their publication. Regardless of Mr de Freitas’ stated intention to challenge the role of the CPS in prosecuting his daughter, without more, there was a necessary implication that Mr Economou had falsely brought the prosecution and could be suspected of being guilty of her rape. Such a serious allegation could reasonably be deemed inherent in the context of the article and therefore required Mr Economou’s response to draw the sting of the libel. Any less could not reasonably be found to be in the public interest.
No matter how the Court of Appeal rules, the drafting of s.4 leaves a number of questions to be resolved: first, if Parliament was happy with the Reynolds defence, why confuse matters by codifying the underlying principle while abolishing the defence? In the alternative, if Parliament was seeking to recast the law, why claim in the explanatory notes this ‘new defence’ is based on the Reynolds defence, and ‘is intended to reflect the principles established in that case and in subsequent case law’? Abolishing the common law to replace it with a different statutory provision is, of itself, an unobjectionable development. However, to codify that common law rule using discretely different language in the statute achieves little but uncertainty and wastes time and costs. Second, there is the issue of what happens to the defamed claimant confronted with a successful s.4 defence? It is unsatisfactory that a claimant can establish they have suffered serious harm to their reputation, and for the defendant to accept that what was said was not true, but to be left without vindication. The public interest is clearly served by publishing material raising significant concerns on important matters. However, there is a countervailing public interest in individuals possessing a valid reputation. Balancing reputational rights against freedom of speech will always be a delicate act when the key determinant is which will better serve the public interest. Too much weight placed one way risks preventing public interest publications; too much the other risks unfairly trammelled reputations. Short of introducing a partial remedy in the event of a successful s.4 defence, such as compelling a right of reply, it is necessary that the courts give particular significance to the steps a defendant took to ensure they were reasonably acting in the public interest in publishing the defamatory statement.
Tom Wright is an Associate Tutor and PhD candidate in Media Law at the University of East Anglia Law School. His research focus is defamation law and freedom of speech.
Twitter: @TomWrightLaw
Blog: https://tjwrightuk.wordpress.com/
This post was originally published on Tom’s personal blog: https://tjwrightuk.wordpress.com/. It has been reproduced for Information Society Policy (ISP) @ UEA with Tom’s permission.
* Image 1 is by Wikimedia Commons and available here. It is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic.
[1] Economou v de Freitas [2016] EWHC 1853 (QB)
[2] Reynolds v Times Newspapers Ltd [1999] UKHL 45, [2001] 2 A.C. 127
[3] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 at 176
[4] Lachaux v Independent Print Ltd [2017] EWCA Civ 1334
[5] Bukovsky v CPS [2017] EWCA Civ 1529
[6] n 2 at 205