Sivier v Riley

The defence of publication on a matter of public interest may protect a publisher who honestly and reasonably gets the facts wrong. Its reasonableness element must be assessed by reference to the information known and relied upon at publication, including third-party hearsay where reliance on it may have been reasonable. It is distinct from a truth defence, which is determined objectively against the full factual picture.

Striking out is reserved for plain and obvious cases. An imperfect public-interest plea should not be struck out immediately where further information or amendment may cure its deficiencies and the pleaded material is capable of supporting the defence.

A political journalist published an article alleging that a television presenter had engaged in and encouraged online abuse of a teenage girl. The presenter sued for libel. Following a preliminary determination of meaning, the defendant pleaded truth, honest opinion and publication on a matter of public interest under sections 2, 3 and 4 of the Defamation Act 2013.

Collins Rice J struck out all three defences in [2021] EWHC 79 (QB). Permission to appeal was confined to the public-interest defence. The central issue was whether the failure of the truth and honest-opinion defences meant that the pleaded public-interest defence also disclosed no tenable case.

1. Appeal allowed. The order striking out the defence under section 4 of the Defamation Act 2013 was set aside. The claimant’s application to strike out that defence was dismissed, and the defence was left to be assessed at trial.

2. A section 4 defence requires the defendant to establish that the statement was on a matter of public interest, that the defendant believed its publication was in the public interest, and that this belief was reasonable. The first and third requirements are objective; the second is subjective. The public-interest concept is broad. It was plainly arguable that an article contrasting a prominent person’s public statements about online abuse with her alleged public conduct concerned matters of public interest.

3. The defendant’s asserted belief could not properly be rejected on the papers. An interim court should be very cautious before finding that a party could not have held a pleaded state of mind, particularly where no evidence has been heard and the first-instance court was not asked to decide the issue. The pleaded belief was supported by a statement of truth, was not inherently incredible and merited trial.

4. The reasonableness inquiry under section 4 differs from the objective inquiry under a truth defence. Truth is assessed against the full factual picture, whether or not the publisher knew all the facts. For section 4, the court must consider the information which the publisher says was known and relied upon at publication. The judge therefore erred by considering tweets outside the pleaded body of material while disregarding two third-party articles on which the defendant said he had relied. Although those articles were hearsay and irrelevant to truth, reliance on third-party hearsay may, depending on the circumstances, reasonably inform a belief that publication is in the public interest.

5. The intended meaning may be relevant to reasonableness, but the latitude allowed for ambiguity has limits. A defendant wishing to rely on an intended meaning different from the meaning judicially determined must plead that position clearly.

6. The defence was imperfectly pleaded, particularly as to the content of the third-party articles and the defendant’s reasoning process. Those deficiencies could potentially be cured by amendment or a request for further information. Striking out is a drastic remedy reserved for plain and obvious cases. Without the articles and evidence about the defendant’s verification and reasoning, the claimant had not shown that the defence was incapable of succeeding.

Henderson LJ and Dame Victoria Sharp P agreed with Warby LJ.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 713, unanimously allowed the defendant’s appeal, set aside the order striking out the public-interest defence and dismissed that part of the claimant’s application.
2. High Court, Queen’s Bench Division: Collins Rice J, in [2021] EWHC 79 (QB), struck out the defences of truth, honest opinion and publication on a matter of public interest. Permission to appeal was granted only in relation to the public-interest defence.
3. High Court preliminary-issues trial: Nicklin J determined that the article conveyed a partly factual and partly opinion-based meaning which was defamatory at common law.