Economou v De Freitas

Under section 1(1) of the Defamation Act 2013, a serious defamatory imputation will ordinarily justify an inference of serious reputational harm. That inference may nevertheless be rebutted at trial. The claimant must establish that the particular publication caused, or was likely to cause, the requisite harm.

Under section 4, reasonable belief in the public interest is assessed in all the circumstances. The Reynolds principles remain a helpful but flexible guide. A non-professional contributor is not automatically subject to every enquiry expected of a journalist, and may reasonably rely in part on a media publisher to make checks and provide balance. The standard remains tailored to the contributor’s role, knowledge, the words used, and the seriousness of their possible meanings.

The claimant brought a libel claim over media publications by the defendant concerning the suicide of the defendant’s daughter, who had faced a prosecution for perverting the course of justice after alleging that the claimant had raped her. The publications did not name the claimant, but were found to refer to him by reference innuendo.

Warby J dismissed the claim: the November publications had not caused serious harm, while the December publications had, but all publications were protected by the public-interest defence: Economou v De Freitas [2016] EWHC 1853 (HC). The claimant appealed on serious harm and the section 4 defence. By respondent’s notice, the defendant challenged the meaning found for one article.

The central issue was whether the claimant had established serious harm from the November publications and whether the defendant reasonably believed that publication was in the public interest.

1. Appeal dismissed. The court upheld the judge’s dismissal of the libel claim. It also rejected the respondent’s challenge to the meaning of the defendant’s article.

2. On meaning, an appellate court should intervene cautiously and only where the trial judge was wrong. The judge was entitled to find that the article conveyed strong grounds to suspect that the claimant was guilty of rape, without conveying actual guilt. The article’s suggestions that the prosecution of the daughter was mistaken supported that meaning, but did not logically establish the claimant’s guilt.

3. Section 1(1) of the Defamation Act 2013 requires serious harm to reputation caused, or likely to be caused, by the publication sued upon. A serious imputation can ordinarily support an inference of serious harm. However, the defendant may rebut that inference on evidence unrelated to the meaning. In this reference-innuendo case, the judge was entitled to examine the limited number of readers, listeners and viewers who identified the claimant, and whether any harm was caused by the November publications rather than other publicity and word-of-mouth. The evidence supported the conclusion that those publications had not caused serious harm.

4. For the section 4 defence, the phrase “the statement complained of” concerns the words published, rather than only the single defamatory imputation found by the court. The question was whether the defendant reasonably believed that publishing those words was in the public interest. The former Reynolds defence had been abolished, but its principles were a helpful guide to the statutory inquiry. The relevant considerations are flexible and fact-sensitive; they are not fixed hurdles.

5. A contributor or source need not make every enquiry expected of a professional journalist. What is reasonable depends on that person’s role and knowledge. A contributor may reasonably rely to some extent on the media publisher to undertake further checks, seek comment and provide balance. That does not create immunity, nor permit every participant to delegate all responsibility.

6. On the unusual facts, the defendant had a reasonable belief that publication was in the public interest. His publications concerned substantial public issues about the CPS’s conduct, the prosecution of a vulnerable rape complainant, and the proposed inquest. He had information he could reasonably regard as reliable, had made reasonable inquiries for a person in his position, did not name the claimant, and directed his criticism principally to the CPS. Despite the claimant’s subsequent public identification and the DPP’s review, the December publications remained a reasonable contribution to that debate. The section 4 defence therefore succeeded.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the dismissal of the libel claim: [2018] EWCA Civ 2591.

• High Court: Warby J dismissed the claim. The November publications had not caused serious harm; the December publications had caused serious harm, but all relevant publications were protected by section 4 of the Defamation Act 2013: [2016] EWHC 1853 (HC).