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In His Defence—Responsible Journalism for Non-Journalists

  • United Kingdom
  • Litigation and dispute management
  • Technology, Media and Telecoms

26-04-2019

As published in the Entertainment Law Review

In the first major decision on the Defamation Act 2013 s.4, the case of Alexander Economou v David de Freitas1 gives eagerly awaited appellate court guidance on the statutory public interest defence for defamation claims, including the extent to which it can protect contributors as well as professional journalists. The Court of Appeal upheld the judgment of Warby J at first instance, ruling that a non-journalist defendant is able to avail of the defence, despite having failed to satisfy the so-called Reynolds criteria for responsible journalism set out by Lord Nicholls. The Court of Appeal also upheld a ruling on serious harm finding that a seriously defamatory imputation will not always be inferred to have caused serious harm within the meaning of s.1(1) of the 2103 Act.

Circumstances of the case

The factual background to this libel case, described as “striking and tragic”, is as follows.

The defendant, David De Freitas, is the father of the late Eleanor de Freitas. Following a short relationship in December 2012, Mr Economou learned that Ms De Freitas had told people that she had been raped by him. He brought a private prosecution against Ms de Freitas, alleging she had accused him falsely, with intent to pervfert the course of justice. The prosecution was taken over by the Crown Prosecution Service (CPS). Three days before her trial date in April 2014, Eleanor de Freitas, who suffered from bipolar affective disorder, killed herself.

In November and December 2014, Mr de Freitas publicly campaigned for the inquest into her death to include a review of the involvement of the CPS, alleging that “there were a series of failings of both public policy and practice”. He gave radio and TV interviews, issued or authorised press statements, and wrote an article himself.

Mr Economou brought libel proceedings over statements made in seven such publications: four Guardian articles (including one written by Mr de Freitas himself), one article in The Daily Telegraph, a BBC TV Interview and a radio interview with John Humphries on the Today programme on Radio 4. Although none of the publications named Mr Economou, he claimed he was identifiable. The judgment made a distinction between publications in November, when the circumstances of the case and Mr Economou’s involvement were known to only some people, and publications in December, by which time Mr Economou’s identity was in the public domain—in large part as a result of an interview he gave to the Daily Mail published on 29/30 November 2014.

The essence of Mr Economou’s complaint—the meaning he gave to the words published or broadcast—was that he had (1) prosecuted Ms fde Freitas for perverting the course of justice on a false basis; and (2) was therefore guilty of the rape of Ms de Freitas.

Whether or not he did was not in issue in the case. The defendant did not plead justification, but the statutory defence for publication on a matter of public interest (the Public Interest defence).

Also in issue at first instance was: 

  • Identification: whether Mr Economou was referred to by the publications complained of;
  • Responsibility: whether de Freitas was responsible for the publications complained of;
  • Meaning: what defamatory imputation about Mr Economou was conveyed by the publications complained of;
  • Serious harm: whether the publications complained of caused serious harm to Mr Economou’s reputation (the new hurdle introduced by the Defamation Act 2013); and
  • Public Interest defence: whether Mr De Freitas was entitled to rely on the statutory defence of publication on a matter of public interest (more usually invoked by “responsible journalists”).

First instance

At first instance, Mr Warby J found that Mr Economou was identifiable to a small number of people as the subject of the November publications of which he complained and to a much larger group of people post the Daily Mail interview. The articles, for which Mr de Freitas accepted responsibility, each bore a seriously defamatory (albeit implied) meaning: that there were strong grounds to suspect Mr Economou was guilty of rape and had brought a private prosecution against Ms de Freitas for perverting the course of justice based on inadequate evidence, and against the public interest because of her disturbed mental state. Despite the serious defamatory imputation, Mr Warby J was not prepared to infer serious harm in respect of the November publications—while Mr Economou had witness statements from friends and acquaintances who had been able to identify him from the articles, they were all largely supportive—they “knew the truth” and “thought the article was outrageous”. By December, the articles did cause serious harm to Mr Economou’s reputation—there was large scale publication. Mr de Freitas was, however, able to rely upon the statutory defence of publication on a matter of public interest—as he would have been, the court found, in respect of all publications.

It will be recalled that the Defamation Act 2013 s.4 (which abolished the Reynolds defence) provides a defence if the defendant can show that “in all the circumstances of the case” the statement complained of was on a matter of public interest and that the defendant reasonably believed it to be so.

It was not in issue that each of the publications complained of were on a matter of public interest. They related to the question of whether the CPS, a public authority, had gone wrong in making a decision to prosecute. The particular context was one of especial sensitivity for three reasons:

• the person whom the CPS had chosen to prosecute for perverting the course of justice was a rape complainant;
• she was a mentally disordered person; and
• she had killed herself almost on the eve of her trial.

Having had the advantage of seeing Mr de Freitas give evidence over many hours, Warby J accepted his evidence that he believed his statements to be on a matter of public interest. There was some debate as to what, technically, a defendant had to believe was in the public interest—the statement he made, or the imputation the court had found the words to mean. Warby J held the former. The issue therefore was whether that belief was reasonable. 

The central dispute between the parties (and a key aspect of the appeal) was whether in assessing whether a defendant’s fbelief that publication was in the public interest was reasonable, the court should be guided by the Reynolds checklist (ten criteria for responsible journalism identified by Lord Nicholls in Reynolds v Times Newspapers Ltd2). Mr Economou claimed Mr de Freitas had failed entirely to satisfy the criteria and that his defence should therefore fail in respect of every publication.

Warby J agreed that, had Mr de Freitas been acting as a citizen journalist, his conduct would have fallen far short of what the Reynolds approach required. But he was not. His role was closer to that of a source or contributor than that of a journalist. In the Today programme, he was an interviewee.

Warby J focussed on the “flexibility” and “adaptability to the circumstances of the individual case” of the Reynolds defence which had been carried through into the new law. Among the circumstances relevant was the subject-matter, the particular words used, the range of meanings the defendant ought reasonably to have considerfed they might convey, and the particular role of the defendant in question.

Warby J distinguished the little case law there was available to him. Malik v Newspost Ltd3 was authority that a person who writes a letter to a newspaper for publication cannot claim Reynolds privilege in respect of the publication of the letter, in the form in which it was sent. In Starr v Ward,4 Nicol J doubted, obiter, that Reynolds could avail an individual sued for a TV interview in which she publicly accused a celebrity of sexually assaulting her. In Hays Plc v Hartley,5 Tugendhat J concluded that the Reynolds defence might be available to someone (in that case a news agency) who contributed to the publication of a newspaper article (by supplying the Sunday Mirror with details of racism allegations made against the claimant company).

There was a difference, Warby J said, between a false statement about events within a defendant’s own knowledge (as in Starr v Ward) and information passed to a journalist for publication by an individual source or contributor, the truth or falsity of which is not within their knowledge. It seemed wrong in principle to require an individual who contributes material for use in an article or broadcast to undertake all the enquiries which would be expected of the journalist. The contributor may well be entitled to rely on the journalist to carry out at least some of the necessary investigation and to incorporate such additional material as is required, in order to ensure appropriate protection for the reputation of others.

In conclusion, Warby J adjudged that Mr de Freitas’ belief that the relevant publications were in the public interest was reasonable because6:

• he reasonably regarded the issues raised as matters of considerable public importance (extent to which the subject-matter is a matter of public concern);

• he was in a unique position to raise the issues, with reference to the tragic circumstances of an individual case, which was likely to catch public attention (source of the information);

• he had some inherently reliable information, having observed some of the history first hand (source of the information);

• he had made, what, for a person in his position, were reasonable and responsible investigations into the merits of the case against his daughter; he was not bound to accept that the CPS had made a correct decision, and he had sufficient material on which to challenge that view (steps taken to verify the information);

• in each case, what he said was “about” the CPS and his daughter, it was targeted at the public authority concerned, not Mr Economou (the nature of the information);

• he deliberately avoided naming or referring to Mr Economou (nature of the information);

• he had, in all the circumstances prevailing at the time of these publications, no reason to suppose that Mr Economou would be widely identified by readers, listeners, or viewers, as the man involved (whether comment was sought from the plaintiff);

• there was a degree of urgency about raising these matters, given the stage that had been reached with the inquest proceedings (the urgency of the matter);

• it was reasonable for him to leave it to media organisations concerned to conduct such further investigations, and to solicit such comment (if any) as the public interest required (whether comment was sought from the plaintiff);

• similarly, as regards Mr Economou’s “side of the story”, though since the story was about the CPS that was very much a secondary issue (gist of the plaintiff ’s side of the story);

• the tone of what he wrote and said was responsible and measured (tone of the article); it was hard to see how Mr de Freitas could have expressed his sincere doubts about the conduct of the CPS without the risk of implicit defamation of Mr Economou (circumstances of publication).

(Warby J accepted that factors 4 and 7 were less true in respect of the December publications).

Further, a judgment in favour of Mr Economou would represent an interference with Mr de Freitas’ free speech rights out of any reasonable proportion to the need to protect and vindicate Mr Economou’s reputation.

Court of Appeal

The claimant appealed in respect of all but two of the Guardian articles (in which Warby J had found that Mr Economou was not referred to, nor did the statements complained of bear a defamatory meaning).

Grounds of appeal

Mr Economou challenged Warby J’s determination of (i) the Public Interest defence issue; and (2) the serious harm issue. Mr de Freitas counter-challenged Warby J’s determination of the meaning of one of the articles in the Guardian written by the defendant himself, arguing that it bore a lesser meaning than Warby J had found.

Meaning

Sharp LJ noted that the determination of meaning is always a matter of impression, as opposed to a forensic analysis, and that in an appeal against meaning, the court should proceed cautiously. An appellate court should only intervene if satisfied that the judge was wrong. Sharp LJ was not so satisfied.

Serious harm

Mr Economou said the gravity of the imputations of the November articles were such that Warby J should have drawn the inference that they had caused serious harm to his reputation. The fact that an inference of serious harm can be drawn, Sharp LJ said, did not preclude the sort of causation analysis undertaken by the judge. Ultimately, Warby J had to be satisfied that it was the particular publication concerned that caused the claimant serious harm. He was not so satisfied, for the reasons he gave.

Public Interest defence

A belief that a statement was in the public interest could not be reasonable for the purposes of s.4, if a defendant had not acted responsibly, that is, by satisfying the ten criteria identified by Lord Nicholls in Reynolds, the claimant said. Warby J’s judgment amounted to contributor immunity—the defendant had been excused for his failure to include, for example, the gist of the claimant’s case, because it was someone else’s job, i.e. the media.

Sharp LJ recognised that the appeal raised a number of difficult issues, in particular, the extent to which contributors to media publications or “citizen journalists” are subject to the same standards of “responsible conduct” required of professional journalists and the organs in which they publish. The critical point in Warby J’s judgment was that the defendant was not a journalist: his role was closer to that of a source or contributor. The Reynolds defence (on which s.4 was based) was available to anyone who published material of public interest in any medium (as per Lord Hoffmann in Jameel7 at [54]). The question in each case was whether the defendant behaved fairly and responsibly in gathering and publishing the information. The court had to look at all the circumstances of the case. In Sharp LJ’s judgment, “all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant”.

Sharp LJ emphasised the strength of the public interest considerations in this case. Warby J’s finding, Sharp LJ said, was not that the defendant “left it all to the media” but that the defendant had some inherently reliable information and had made what, for a person in his position, were reasonable and responsible investigations into the merits of the case against his daughter. Incorporating the “Claimant’s side of the story” would have made little sense where the defamatory meanings were implied meanings and secondary to the principal messages of the articles, squarely aimed at the CPS. Further, Sharp LJ noted, the defendant had limited room for manoeuvre.

The Court of Appeal unanimously dismissed the claimant’s appeal and refused permission to appeal to the Supreme Court.

Comment

This was the first case substantively to consider in detail the new s.4 “public interest” defence under the Defamation Act 2013. Section 4 was intended to codify and abolish the common law Reynolds defence, freeing judges from the stricture of Lord Nicholl’s criteria. Under the Reynolds defence, the focus was on whether the defendant had adhered to standards of responsible journalism. The focus in s.4 is on whether the defendant “reasonably believed” publication was in the public interest.

When the Act came out, commentators debated how it would work. Indeed, the debates in the Commons and the Lords around this aspect of the new Act were some of the most nuanced and led to significant amendments being tabled. However, it was clear from the parliamentary debates on the provisions of the Defamation Bill 2012 and the Explanatory Notes published with the final form of the Act itself that the principles enshrined in Reynolds would not be completely abandoned. But would there be a sliding scale with large media organisations being judged by one standard and bloggers being judged by a lesser standard? This could not be what Lord Nicholls envisaged for his responsible journalism test, it was said8. What this case conffirms is that the Reynolds criteria can be applied loosely to a non-journalist making media publications.

This is obviously helpful to bloggers and non-journalists who are increasingly competing with traditional news outlets for attention. On the other hand, any perception that there is a relaxation of the standards is potentially a worry in this age of fake news. As Sharp LJ says: “It might also be said, 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” [109]. Ultimately, this decision serves to take the sting from the criticism of libel law made by the Libel Reform Group in 2009, that along with driving up costs, the Reynolds criteria were not applied widely enough beyond traditional investigative journalism. That is no longer the case.

It should be recalled that s.4 is an absolute defence—it is not pleaded by way of mitigation. It is essentially, a “limited right to publish with impunity untrue defamatory matter”.9 If a defendant is wrong and publishes a statement which seriously defames a claimant, it will be “let off the hook” if it can be shown it tried hard enough to be right (i.e. was responsible). The rationale was that it is so squarely in the public interest for news to be reported that news institutions should be cut some slack. Non-journalists, it seems, are cut even more slack.

The Reynolds criteria are not abandoned altogether in s.4 but, it is now clear, have a more limited role in assessing whether a belief that a statement was in the public interest was “reasonable” “in all the circumstances of the case”. Again this reflects much debate and commentary during the evolution of the Act, which acknowledged that the Reynolds criteria could be too onerous and prescriptive but, nonetheless, they had a value and should not be abandoned altogether.

That said, the attempts to shoe-horn the old Reynolds criteria for responsible journalism into s.4, pleaded by a non-journalist defendant, may feel a little strained. For instance, the court does not try very hard to distinguish Malik v Newspost Ltd and Starr v Ward which would tend to impose liability, at least in respect of the Guardian article which the defendant wrote himself.

The ratio decidendi for the decisions, it seems, was that the statements complained of were squarely on a topic of weighty public interest and the meanings about the claimant were implied and not in the contemplation of the defendant making the statements. As is not uncommon, it is clear that a dispute in which the subject matter had a slightly less significant public interest aspect may well have gone a very different way. As Sharp LJ stated “As with Reynolds therefore, with its emphasis on practicality and flexibility, all will depend on the facts”.

The interpretation of s.4 in this case can perhaps also be understood by reference to common law qualified privilege (out of which the Reynolds defence was born) which is, on the face of it, unaltered by the Defamation Act 2013. Qualified privilege recognises that there are certain situations in which it is in the public interest that someone should be able to speak or write freely. It provides a defence where there is:

• reciprocity of duty or interest;
• public interest in frank and uninhibited communication in the situation in question; and
• absence of malice.

Situations where the defence might arise include the provision of a reference concerning a prospective employee to his potential employer.10 In Reynolds, the House of Lords ruled that there was a special type of defence of qualified privilege for the media in defamation cases where they had engaged in investigative journalism. Its emergence was important because previously a communication to the world at large (by the press) was not thought to satisfy the requirement of reciprocity of duty and interest—i.e. a legal, moral or social duty to make a statement and a corresponding interest on the part of the recipient to receive it.

Developments in the law since then on in ECHR art.10 have confirmed that it encompasses both a right to impart and receive information.11 There is reciprocity of duty and interest in the flow of information. That means a publication to the world at large (through the media) on matters of public interest may well now fulfil the requirements of common law qualified privilege. Here, Mr de Freitas made statements which the court emphasised were on matters of weighty public interest. The court also vindicated the forum he chose to publish them in—to the world at large, through the media. To the extent that the application of s.4 by reference to Reynolds may feel a little strained, in the future it may feel more comfortable by reference to its precursor—qualified privilege.


1 Economou v De Freitas [2018] EWCA Civ 2591; [2018] 11 WLUK 320.
2 Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127; [1999] 3 W.L.R. 1010.
3 Malik v Newspost Ltd [2007] EWHC 3063 (QB); [2007] 12 WLUK 618.
4 Starr v Ward [2015] EWHC 1987 (QB) at [117]; [2015] 7 WLUK 328.
5 Hays Plc v Hartley [2010] EWHC 1068 (QB); [2010] 5 WLUK 351.
6 Reference to Reynolds test criteria in emphasis.
7 Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 A.C. 359.
8 See, e.g. S. E. Gale, “Qualified privilege in defamation and the evolution of the doctrine of reportage” [2015] The Tort Law Review 23(1), 16–31, 1.
9 S. E. Gale, “Qualified privilege in defamation and the evolution of the doctrine of reportage” [2015] The Tort Law Review 23(1), 16–31.
10 Spring v Guardian Assurance Plc [1995] 2 A.C. 296; [1994] 3 W.L.R. 354.
11 Lingens v Austria (A/103) [1986] 7 WLUK 66; (1986) 8 E.H.R.R. 407; Sener v Turkey (26680/95) [2000] 7 WLUK 504; (2003) 37 E.H.R.R. 34; Thoma v Luxembourg (38432/97) [2001] 3 WLUK 814; (2003) 36 E.H.R.R. 21; Dichand v Austria (29271/95) 26 February 2002 etc.

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