A decade of the Defamation Act 2013 – PART 3: Public interest, Privilege and Secondary defences
Executive Summary
- The Defamation Act 2013 came into full force on 1 January 2014.
- The Act reformed defamation law in England and Wales and was designed to strike a balance between the protection of reputation and freedom of expression.
- In a five-part series, we evaluate the Act’s impact on defamation claims during the past decade and consider the findings in key case law within the context of each provision and the effect of litigating defamation claims.
- In part one, we considered the introduction of the serious harm test.
- In part two, we considered the defences of truth and honest opinion.
- In part three, we consider the remaining defences such as public interest (Section 4 of the Act), privilege (Section 5 of the Act) and secondary defences, including the defence for operators of websites and peer-reviewed statements.
PART 3: Public interest, Privilege and Secondary defences
Section 4 - Publication on a matter of public interest
Section 4 of the Defamation Act created a new statutory public interest defence, available to defendants where two limbs are established: public interest and reasonable belief. The key principles which apply are:
- The statement complained of was, or formed part of, a statement on a matter of public interest; and
- The defendant reasonably believed the publishing of the statement was in the public interest.
The public interest
The court must have regard to all the circumstances of the case to determine if the test is established. If the statement complained of is, or forms part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. This is similar to the former and commonly referred reportage defence. Additionally, the court must make such allowance for editorial judgement as it considers appropriate.
What constitutes a matter of public interest is well established in English common law and remains sufficiently broad. Extensive pre 2013 case law is relevant, which includes the conduct of government and other public institutions such as hospitals, educational centres and law enforcement. An individual’s private life may be a matter of public interest where the individual is a public figure, however, an examination will need to be carried out in each case. By way of example, in Yeo v Times Newpapers Limited [2015] EWHC 3375, the Court ruled defamatory allegations about Tim Yeo, a Member of Parliament, related to his conduct in his public role rather than his private or personal life. The claim had concerned allegations that the Claimant was willing to abuse his position in Parliament to benefit his own financial and business interests by breaching the Code of Conduct of the House of Commons and by acting as a paid advocate.
A defendant’s reasonable belief
Reasonable belief requires a defendant to establish they reasonably believed publishing the statement was in the public interest. Section 4 of the Act abolished the previous common law defence of responsible publication, known as the ‘Reynolds’ defence.
In Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, the House of Lords had created a non-exhaustive list of criteria that the courts should consider when a defendant pleaded a case of reasonable publication. This criteria included: the level of seriousness of the allegation; the type of information; the source; verification attempts; status of the information; urgency; whether any attempt to obtain comment from the Claimant had been made; whether both sides of the story were included in the publication; the tone of the published material; and the background to, and timing of, the publication.
During the passage of the Defamation Bill, it became clear the government intended the new Section 4 reflected the principles and criteria established in Reynolds. Once the Act came into force, it was noted in the Explanatory Notes that the ‘Reynolds’ defence was abolished because the statute codified the common law defence The Supreme Court has since noted in Serafin v Malkiewicz & Ors (discussed below) Section 4 did not ‘codify’ the ‘Reynolds’ defence and the elements of Section 4 are not directly transferred from elements of the old common law defence (despite the Supreme Court’s comments, the Explanatory Note remains unamended).
Judicial consideration of Section 4 Defence
As the Court of Appeal confirmed in Economou v De Freitas [2018] EWCA Civ 2591, there is no restriction on who can take advantage of a Section 4 Defence. The Defendant, who was Respondent to the Claimant’s appeal, was the father of a young woman, considered mentally vulnerable and who took her life, shortly before facing a trial on a charge of perverting the course of justice by fabricating a rape allegation against the Claimant (who was her ex-partner). During a Coroner’s Inquest into her death, the Defendant contributed to media articles that were found by the Judge, Mr Justice Warby, to be defamatory of the Claimant, but which the Judge also concluded were on a matter of public interest and that the Defendant’s reasonable belief publishing the statements was in the public interest. The Appeal Court upheld the High Court's ruling that in assessing the second limb of reasonable belief, it was not appropriate to hold the Defendant to the standards that might be required of a journalist. Warby J considered it was appropriate the Defendant was held to a lower standard than a journalist, because he was not one and rather, his role was close to that of a source or contributor.
The Supreme Court made a range of observations in 2020 regarding Section 4 in Serafin v Malkiewicz & Ors [2020] UKSC 23. This was a claim brought by a Polish businessman, who had lived in England since 1984. The claim was brought against the editors and owner of a Polish newspaper that was published in England, which addressed issues of interest to the UK’s Polish community. The claim concerned one article in which 13 defamatory meanings were found by the Court. The allegations were of exceptional gravity and included allegations of criminal conduct. In 2017, Mr Justice Jay dismissed the claim following trial, after the Defendant had pleaded defences in truth, honest opinion and public interest, and had partial success of their truth defence and upheld the defence of public interest across the board. The Claimant appealed and in 2019, the Court of Appeal allowed the whole appeal, ruling the Judge had been wrong to find for the Defendant’s Section 4 defence. The Claimant argued Jay J took insufficient account of the Defendant’s failure to contact or attempt to contact him prior to publication, which the Claimant maintained was vital due to the exceptional gravity of the allegations. In contrast to Economou, the Appeal Court ruled it will be rare a journalist or publisher defendant can demonstrate it was reasonable to have not approached the subject of a potentially defamatory article for comment before publication and further, that it was difficult to see how the High Court concluded the Defendants had undertaken reasonable inquiries.
One of the issues the Supreme Court considered was whether the Court of Appeal had been wrong to substitute determinations of its own in favour of the Claimant for those of Jay J, including whether the Defendants had established their Section 4 defence. In Economou, Warby J held that a belief was reasonable for the purposes of Section 4, if held after conducting pre-publication enquiries and checks, and that this was reasonable to expect of the particular Defendant in all the circumstances of that case. Warby J explained that among the circumstances, and relevant to the question of what enquiries and checks were necessary, included consideration of the subject-matter, the particular words used, the range of meanings the Defendant ought reasonably to have considered might be conveyed and the particular role of the Defendant in question. The Appeal Court in Economou approved this approach. After considering the Defendant’s criticisms that this was incompatible with Section 4, the Supreme Court clarified that a failure to seek comment will "no doubt always at least be the subject of consideration under subsection (1)(b)" but that it was "too strong" to describe giving an opportunity to comment as a specific requirement to engage the Section 4 Defence when it was never a requirement of the common law. The Supreme Court observed the term ‘checklist’ was best to avoid, but also confirmed that as in Economou, some of the ‘Reynolds’ criteria might be relevant to an assessment of reasonable belief, however it should not be interpreted as a definitive checklist. The Supreme Court made no findings on the Section 4 Defence and ordered a retrial before a different Judge of the Media and Communications List, to determine the Section 4 Defence, without reference to the Court of Appeal’s reasoning. It is understood the parties settled the claim in 2021 on the basis the Defendants would not have to make any further payment or redress to the Claimant but forego any right to recover their costs. The Defendants have since applied to the European Court of Human Rights in Strasbourg that the excessive costs incurred defending the claim and responding to the appeals was a violation of their Article 10 rights concerning freedom of expression. At the time of writing, the application has yet to be determined by the European Court.
Other notable decisions on Section 4
Following the Supreme Court’s decision in Serafin, notable decisions on the Section 4 Defence are worth examining.
Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB), previously explored in Part One of this series, was a trial of liability and quantum after the Supreme Court’s landmark decision. The case had to consider allegations against the Claimant that he was a wife-beater and had falsely accused his ex-wife of kidnap, after she departed the country with their son, causing her to face the risk of being jailed and that he unjustifiably snatched their son back from her. The Defendants relied on a Section 4 Defence and Mr Justice Nicklin found both Defendants had demonstrated their articles were or formed part of a statement on a matter of public interest, however, the Defences did not satisfy the other elements Section 4 required.
The First Defendant failed to demonstrate a belief the publication was in the public interest and therefore, any such belief was in any event not reasonable. The Second Defendant demonstrated a belief its publication was in the public interest, but the Court found this belief was not reasonable. The Judge found, given the gravity of the allegations, the Defendant newspaper publishers were obliged to verify the allegations in relation to the Claimant in order to be able to rely on a Section 4 Defence. The judgment had a particular criticism for the failure of any of the journalists and editors to approach the Claimant for comment and fairly represent his response in the articles complained of. Further, the Defendants had both failed to demonstrate a reasonable belief in the ongoing publication of the articles as amended, after the Letter of Claim was sent and judgment was handed down in relevant Family Law proceedings between the Claimant and his ex-wife. The decision confirmed media organisations defending libel proceedings on a Section 4 Defence should, in general, be able establish their public interest-related beliefs and the rationale for those beliefs by means of contemporaneous notes and/or keeping records of decisions in relation to their thought-processes at the time of publication.
Hay v Cresswell [2023] EWHC 882 (KB) was a claim in which Mrs Justice Williams ruled a sexual abuse victim successfully defended the libel claim brought by her perpetrator on both Section 2 (truth) and Section 4 (public interest). The Defendant, who was not a professional journalist, had written about her experience of a frightening and violent sexual assault in a blog she published online and then circulated on social media. The ruling in favour of the Section 2 Defence disposed of the claim, however, the Court also considered the Section 4 Defence and ruled the publications were a matter of public interest, that the Defendant believed this (an aspect that was not challenged by the Claimant in cross-examination) and in the circumstances, the Defendant held a reasonable belief. The fact the Defendant had not sought prior comment from the Claimant or otherwise reflected his position in the statements complained of, did not undermine her reasonable belief. The Court found it would have been unreasonable to expect her to have made an approach for comment before publication, in the circumstances where she was writing about her own experience as a victim of a frightening and violent sexual assault.
The significant impact of Section 4 - public interest defence
The public interest defence of Section 4 is one of the key changes to defamation law that established an important defence, and has had a significant impact during the last decade. It is the only defence in the Act that has been subject to consideration by the Supreme Court in the past decade. Where a defence in truth or honest opinion is not available, it has afforded various and different defendants the means to protect their publications concerning allegations of wrongdoing. While Section 4 emphasises and recognises the role of the media in a democratic society, a crucial factor for any future Section 4 Defence is that a defendant has acted responsibly and conducted due diligence to ensure a reasonable belief publication is in the public interest can be established. A Section 4 defence is bound to fail without this, as seen in Lachaux. Furthermore, a court will not hold all defendants to the same standard as professional journalists, as established by Economou. Accordingly, a court will need to determine the particular parameters of a Section 4 defence when it is pleaded to defend a publication complained of.
Section 5 - Operators of websites
Section 5 of the Act created a new defence in defamation proceedings for operators of websites, specifically, where an action is brought against the operator of a website hosting user-generated content. A Section 5 Defence is available where the action is brought in respect of a statement posted on the website and a defendant website operator can show that it did not publish the statement complained of.
An operator will, however, have to comply with the Defamation (Operators of Websites) Regulations 2013 (the “Regulations”) and any failure to comply may result in a loss of a Section 5 defence. Who or what is an "operator" is not defined in the Act, but the Regulations provide a simple definition that "the operator of the website on which the statement complained of in the notice of complaint is posted".
A Section 5 Defence can be defeated if a claimant shows that:
- it was not possible for the claimant to identify the person who posted the statement;
- the claimant gave the operator a notice of complaint in relation to the statement; and
- the operator failed to respond to the notice of complaint in accordance with any provision set out in Regulations.
A claimant can also defeat a Section 5 Defence if it can be proven the operator acted with malice in posting the statement complained of.
There has been minimal consideration of a Section 5 defence by a court to date. However, it remains possible Section 5 will become relevant in the future with the increase in both the sophistication and use of content, generated by machine learning and artificial intelligence, which can be shared ‘anonymously’ and where no publisher is easily identifiable. In such circumstances, it will likely be deployed by the website operator to complaints about the content complained of and an operator would be well advised to engage with the complaint, particularly to avoid liability through an omission of engagement.
Section 6 - Peer-reviewed statement in scientific or academic journal etc.
Before the Act was devised, there had been calls for greater protection for defamatory scientific and academic speech. Section 6 of the Act established a statutory protection for scientists and academics publishing in peer-reviewed journals, both in print and online. The publication of a statement in such a journal attracts qualified privilege, provided the following conditions are met:
- the statement relates to a scientific or academic matter; and
- before the statement was published in the journal, an independent review of the statement’s scientific or academic authority was carried out by
- the editor of the journal, and
- one or more persons with expertise in the scientific or academic matter concerned.
Where a statement is protected by Section 6, the subsequent publication of a fair and accurate copy of the statement also attracts protection by privilege, as does an extract from or summary of the relevant statement. A Section 6 Defence can be defeated if a claimant can prove the statement was made with malice.
The enhanced protection for defamatory scientific and academic speech followed a series of cases, all of which involved scientific issues. Most notable was the Court of Appeal’s decision in the case of British Chiropractic Association v Singh [2010] EWCA Civ 350, where a scientist/academic writer had to defend a claim against the BCA concerning a publication he wrote, in which he alleged the Claimant of promoting bogus treatments.
The inclusion of Section 6 in the Act was a key overhaul in defamation law. The apparent aim to prevent any suppression of legitimate scientific debate and to encourage scientists and academics to publish their findings, without fear of the risk of being sued for defamation, appears to have successful. There has been limited to no consideration of Section 6 by a court since the Act was implemented.
Section 7 - Reports etc. protected by privilege
Section 7 of the Act modified existing statutory privilege defences found in the Defamation Act of 1996. The 1996 Act remains largely in force, with key provisions being those relating to the offer of amends defence and statutory privilege. Privilege Defences includes Absolute Privilege, which protects certain occasions such as court proceedings but also, statutory Qualified Privilege, which applies to reports that are fair and accurate, published without malice and concern a matter of public interest. As an example, the latter can apply to reports of proceedings of certain public meetings and proceedings at a general meeting of a UK public company, which meet these conditions.
Modifications from Section 7 of the 2013 Act include fair and accurate reports of legal proceedings in any court established under the law of any country or territory and also, any international court or tribunal established by the Security Council of United Nations or by an international agreement are absolutely privileged. The internationalisation meant the defence of qualified privilege applied to international listed companies as well as those in the UK. The 2013 Act also extended Qualified Privilege so it now covers summaries of, but also, copies and/or extracts from various documents circulated to members of listed companies by the board, directors, auditors or other members and in addition, to cover reports of scientific and academic conferences.
In the fourth and penultimate instalment of our A decade of the Defamation Act 2013 series, we examine Sections 8-10 and consider the single publication rule and jurisdiction.
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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.