There has for many years been a "public interest" defence to defamation, a recognition that it may sometimes be right to publish defamatory statements – even those that are not demonstrably true - where there is a genuine "right to know". Originally, it was aimed at the media, who are typically at high risk of legal action for reporting on controversial issues, often without the liberty of time to establish the facts. But, the "Reynolds" defence, as it became known after the case that established it, only protected the fruits of responsible journalism, and Lord Nicholls in that case famously set out a ten-point 'checklist' for good behaviour. A responsible media organisation would, for example, be expected to try to verify the underlying information before publishing; to give the subject of the story a reasonable right of reply; and to include the gist of that reply in the story.
Five years ago, the "Reynolds" defence was replaced with a new, statutory defence under the Defamation Act 2013. It is not confined to the media, but was intended to reflect the Reynolds focus on responsible reporting. For the defence – under s.4 of the Act - to succeed, the statement complained of must be on a matter of a public interest, and the defendant must reasonably have believed that publishing it was in the public interest. The court must have regard to "all the circumstances of the case" and allow for "editorial judgment".
Two recent judgments have provided further guidance on s.4, especially for defendants outside the traditional, Reynolds-era realm of the professional media.
Economou v de Freitas was a libel claim brought in tragic circumstances. The claimant, Mr Economou, had been accused of, but never charged with, rape, by the daughter of the defendant, Mr de Freitas. Mr Economou brought a private prosecution against Ms de Freitas - later taken over by the CPS - alleging that she had falsely accused him with the aim of perverting the course of justice. Ms de Freitas denied the charge and, four days before trial, took her own life. Mr Economou then sued Mr de Freitas over various press statements he made questioning the conduct of the CPS, which he said amounted to an allegation that he was guilty of rape.
The High Court Judge, Mr Justice Warby, agreed that the implied defamatory meaning - the statements were "squarely aimed" at the CPS – was that there were strong grounds to suspect that Mr Economou was guilty of rape, and had falsely prosecuted Ms de Freitas. But, he allowed a defence of public interest: Mr de Freitas' tone was measured and responsible, also he would have struggled to express his sincere doubts about the conduct of the CPS without impliedly defaming the claimant.
One of the key findings was that the court, when considering the applicability of s.4, should have regard to the particular "role" of the defendant. Arguably a "citizen journalist", composing and publishing what purports to be investigative journalism, should be expected to conform to the Reynolds requirements before he can claim the benefit of s.4. But, that was not Mr de Freitas' role; he was more of a "source or contributor", entitled to rely on the relevant media organisations to conduct any further investigations and to solicit any further comment as the public interest required.
The Court of Appeal, which handed down its judgment last month, agreed. It endorsed Warby J's "nuanced and bespoke" reasons, as well as a practical and flexible approach to the Reynolds checklist.
In the meantime, Warby J looked again at s.4 in the case of Doyle v Smith, referring to his earlier findings in Economou. Here, the defendant, Mr Smith, was the sole operator of a community newspaper, who had accused the claimant, Mr Doyle, of being involved in a £10m fraud, as well as suspected blackmail and malicious communications. His public interest defence failed. Unlike Mr de Freitas, Mr Smith was held to the high standards expected of seasoned journalists. It would be wrong in principle, the Judge said, to give Mr Smith "some credit or leeway to reflect his lack of professional skill, training or expertise".
Together, Economou and Doyle confirm that the court, when considering s.4, will look closely at the defendant's role in publication but will not, for journalists, excuse a lack of experience. Even without the resources and backing of a professional newsroom, an amateur blogger assumes a professional duty of care, and level of risk. At the same time, good behaviour remains important. Contrast Mr de Freitas' conduct, which fell "far short" of complying with the Reynolds checklist but was nevertheless deemed responsible, with that of Mr Smith, who had a "closed mind" and engaged in "deliberate fakery".
Finally, these judgments highlight just how much is at stake when s.4 pits reputation against free speech. To reiterate, the defence specifically protects false statements, those that emerge as false, or those that cannot be proved, on the balance of probabilities, to be true. In other words, although a responsible defendant will do their best to avoid publishing untrue material, they will be judged by what they knew and did only up to the time of publication. If a defendant does not also plead truth, that can leave the claimant in the frustrating position where the truth or falsity of the underlying – potentially extremely serious – allegations, will not be tested. Meanwhile, as Lady Justice Sharp said in Economou, the consequences of publishing false information are even more significant in today's world of fake news, where online content has both permanence and reach.
It is worth remembering, however, that the defence of public interest evolved from the notion of qualified privilege: there may be privilege to speak freely, but only where the subject matter, as well as the defendant's behaviour and the circumstances leading up to publication, allow. The breadth and flexibility of the new defence, continuing as it does the Reynolds emphasis on responsible conduct, should give publishers both comfort and pause. Ultimately, to quote again Lady Justice Sharp, "all will depend on the facts".