Zoë Harcombe PhD & Anor v Associated Newspapers Limited & Anor

Under section 4 of the Defamation Act 2013, a publisher must show both an actual and objectively reasonable belief that publication was in the public interest. The court must assess the whole journalistic process, including the evidence available before publication, verification, fairness, balance and presentation. Editorial judgment receives appropriate weight, but does not justify misrepresenting or ignoring material evidence.

The public interest defence applies to fact and opinion, but does not absorb the separate honest opinion defence. Serious criticism of identified participants in a continuing scientific debate requires a fair representation of the debate and their contribution. Statutory reporting privilege protects fair and accurate reporting, but not material that materially misrepresents the underlying statement. A dominant improper purpose alone does not defeat statutory reporting privilege, although knowing or recklessly publishing a false report may do so.

The claim arose from three print articles and related online publications about statins published by Associated Newspapers Limited and Barney Calman. The articles identified Zoë Harcombe and Dr Malcolm Kendrick as “statin deniers” and alleged that their statements were false, harmful and dishonestly motivated.

The court tried preliminary issues concerning public interest under section 4 of the Defamation Act 2013, reporting privilege under section 15 of the Defamation Act 1996, privilege for reports of peer-reviewed scientific material under section 6 of the Defamation Act 2013, malice, publication, meaning, fact or opinion, and whether Mr Calman held the opinions conveyed.

The central questions were whether the publications were protected by statutory defences and what meanings they conveyed when read as a whole.

1. Public interest. The publications concerned a matter of public interest and Mr Calman believed publication was in the public interest. The defence nevertheless failed because his belief was not objectively reasonable. He had pursued a predetermined and polemical attack, failed properly to investigate the Claimants’ responses, misrepresented the statin debate, and presented serious allegations of dishonesty without a proper evidential basis. The court stressed that editorial judgment does not permit a publisher to ignore or distort material evidence, particularly in a complex scientific controversy. The defence failed for the print and all online publications: [2024] EWHC 1523 (KB) [404]–[469].
2. Reporting privilege. The Hancock Statement was an official statement issued for public information, even though supplied to one newspaper. However, its use in the articles was not a fair or accurate extract or summary. It gave the false impression that the Health Secretary had personally denounced the Claimants. The privilege therefore failed under section 15 of the Defamation Act 1996: [2024] EWHC 1523 (KB) [470]–[482].
3. Peer-reviewed material. Section 6(5) of the Defamation Act 2013 provides a general reporting privilege where the underlying statement is privileged under section 6. The LSHTM Paper had been independently peer-reviewed by the responsible editor and persons with relevant expertise. Most summaries were fair and accurate. The passage asserting that the study included public statements by the Claimants was not, and could not be severed by “blue pencilling”: [2024] EWHC 1523 (KB) [484]–[507].
4. Malice and meaning. A dominant improper purpose alone does not defeat statutory reporting privilege. The publications were treated as a single print publication; the online hyperlink did not generally incorporate the linked article. The print and online publications conveyed allegations of knowingly false statements, harmful consequences and dishonest, venal motivation, together with expressions of opinion. Mr Calman did not hold the opinions that the Claimants were “pernicious liars”. The preliminary issues were resolved accordingly, with consequential directions adjourned.

The claims were issued in February 2020. The court ordered a trial of preliminary issues, following an earlier case-management decision reported as [2022] EWHC 543 (QB). This judgment determined those preliminary issues at first instance. Consequential directions and applications for permission to appeal were adjourned.