Economou v David De Freitas (Rev 1)

A defendant relying on section 4 of the Defamation Act 2013 must show that the statement concerned a matter of public interest and that the defendant reasonably believed its publication was in the public interest. Reasonableness depends on all the circumstances. The enquiries and checks reasonably expected are bespoke to the defendant’s role.

A source or contributor need not perform every task expected of an investigative journalist. The contributor may reasonably rely on the publisher to investigate, seek comment and provide balance. The court must also consider the words used, their reasonably foreseeable meanings, urgency and editorial judgment. The defence may protect an unintended defamatory implication, although a publisher cannot disregard an obviously possible defamatory meaning.

The claimant brought libel proceedings over statements made or authorised by the defendant, the father of a woman who had accused the claimant of rape and later faced prosecution for perverting the course of justice. She died shortly before trial. The defendant publicised concerns about the Crown Prosecution Service’s decision to continue that prosecution and sought fuller examination of its role at the inquest.

The claim concerned seven newspaper articles and broadcasts. The issues were identification, responsibility for publication, defamatory meaning, serious harm under section 1 of the Defamation Act 2013, and the public-interest defence under section 4. The central question was whether the defendant reasonably believed that publishing his statements about the prosecution decision was in the public interest.

1. The claim was dismissed. Only the Telegraph article and the article written by the defendant satisfied all the requirements of a defamation cause of action. Both claims failed because the section 4 public-interest defence was established. The defence would also have protected all five other publications had they otherwise been actionable.

2. Identification is determined objectively by asking whether reasonable people would understand the words to refer to the claimant. A person may be identified through extrinsic facts known to some publishees. Three early publications conveyed defamatory implications, but the claimant was identified only by a relatively small group and failed to prove that those publications caused serious reputational harm. Two later publications caused serious harm after his identity had entered the public domain.

3. Under section 4 of the Defamation Act 2013, the defendant must prove both an actual belief that publication of the statement was in the public interest and that the belief was reasonable. The belief concerns the words published, rather than the defamatory imputation which the court later attributes to them. It must exist at publication. Its reasonableness is judged principally by what the defendant then knew, said and did. The allegation’s eventual truth or falsity is not determinative.

4. A belief is reasonable only where the defendant has undertaken the enquiries and checks reasonably expected of that particular defendant in all the circumstances. The assessment is flexible and role-sensitive. It includes the subject matter, the words used, meanings which ought reasonably to have been anticipated, urgency, the defendant’s role and the statutory allowance for editorial judgment.

5. A source, interviewee or contributor is not necessarily required to perform all the enquiries expected of the journalist or publisher. Depending on the arrangements and the contributor’s knowledge, it may be reasonable to rely on the media organisation to investigate further, obtain comment and supply balance. Unintended defamatory implications may therefore be protected, although an obviously possible defamatory meaning cannot responsibly be ignored.

6. The challenged statements addressed sensitive matters of substantial public importance: prosecution policy concerning rape complainants, mental illness, possible institutional error, suicide, and the proper scope of an inquest. The defendant had reasonable grounds for questioning the prosecution decision, avoided naming the claimant, spoke in measured terms and reasonably relied to some extent on professional advisers and media publishers. His later criticisms remained within the generous latitude afforded to political speech despite the Director of Public Prosecutions’ defence of the prosecution decision.

This was a first-instance trial. The judgment refers to an earlier pre-trial review decision in the same proceedings: [2016] EWHC 1218 (QB).