Serafin v Malkiewicz & Ors

In a defamation claim concerning a newspaper article, separate defamatory imputations must generally be justified separately. A defendant cannot rely on a common sting where the allegations are separate and distinct as a matter of fact and degree. Under section 2 of the Defamation Act 2013, substantial truth does not require proof of every detail, but each individual imputation must be addressed where the article does not convey one common imputation.

The statutory defences of honest opinion and publication on a matter of public interest were also considered. Public interest is assessed by reference to the publisher’s reasonable belief and the circumstances known at publication, with appropriate allowance for editorial judgment. A photograph taken consensually in a public place did not, on the facts, give rise to a reasonable expectation of privacy.

The claimant sued the editor, publisher and an editor of a Polish-language newspaper for libel and misuse of private information. The article alleged misconduct involving charitable organisations, business investors, creditors, bankruptcy and personal relationships. The defendants relied on truth, honest opinion and publication on a matter of public interest.

The principal issues were the meanings conveyed by the article, whether the imputations formed a common sting, whether the statutory defences were established, and whether the claimant had a reasonable expectation of privacy in a photograph taken during a holiday with a former partner.

1. Meaning and common sting. The article conveyed a number of separate imputations. The pleaded allegations concerning POSK, the Jazz Café, Polfood and Kolbe House were not sufficiently connected to constitute one common sting. Under [1986] QB 1000, a common sting may arise where separate allegations are in substance similar-fact evidence, but separate and distinct defamatory statements must be justified individually. The defendants therefore had to establish the substantial truth of each relevant meaning.
2. Truth. The first to seventh meanings were substantially true, including allegations concerning abuse of position at POSK, manipulation of POSK memberships, exploitation of relationships with women, diversion of Jazz Café receipts, improper inducement of investors, diversion of company funds and dealings with assets to the detriment of creditors. The eighth to thirteenth meanings were not generally proved, although the eleventh failed the serious-harm threshold and would have been substantially true if that threshold had been met.
3. Defamation Act 2013. Section 2 broadly reflected the common-law position. “Substantially true” did not require proof of every detail, but the statutory analysis applied to each individual meaning rather than to the article as a whole. The headline and caption were statements of opinion under section 3. Their basis was indicated by the article, and an honest person could have held the opinions on the evidential material available.
4. Public interest. The publication concerned the fitness of a person to be involved in charitable institutions and the defendants reasonably believed publication to be in the public interest. They made reasonable inquiries, assessed their sources and were entitled to editorial judgment. In the unusual circumstances, they were not required to obtain the claimant’s comments before publication. The defence under section 4 succeeded in relation to the whole article.
5. Privacy. Applying the broad circumstances-based approach in [2009] Ch 481, the claimant had no reasonable expectation of privacy in a photograph taken with his knowledge and consent on a public beach. The claim for misuse of private information therefore failed.
6. Disposition. Judgment was entered for the defendants.