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Economou v de Freitas [2016] EWHC 1853 (QB)

Case date: 27/07/2016

Court: High Court

Area/s of law: Defamation

Barrister/s: Manuel Barca QC, Ian Helme

Background

The Defendant is the father of the late Ms Eleanor de Freitas.  In January 2013, following a brief relationship with the Claimant, Ms de Freitas (who suffered from bipolar disorder) accused him of rape.  The police did not charge him.  The Claimant commenced a private prosecution against Ms de Freitas for perverting the course of justice in respect of the rape allegation, which was taken over and continued by the CPS.  Ms de Freitas committed suicide shortly before trial.  The Defendant sought to air issues that he wanted to be examined at the inquest into Ms de Freitas’ death.  In November and December 2014, he issued or authorised the issue of press statements for publication in newspaper articles, and gave television and radio interviews.  He also wrote an article that was published in The Guardian.  The Claimant brought an action in libel against the Defendant in respect of five newspaper articles and two BBC broadcasts. 

Decision

There were five issues to be addressed on liability (at [5]):

  1. Reference to the Claimant;
  2. In respect of one publication, the Defendant’s responsibility for publication;
  3. Defamatory meaning;
  4. Serious harm under s.1 Defamation Act 2013 (“DA”); and
  5. Whether the Defendant could rely on the defence under s.4 DA of publication on a matter of public interest.

Warby J held that of the seven publications, only two were actionable by the Claimant as fulfilling the criteria at (i)-(iv) above: [130].  However, the Defendant was entitled to rely on the s.4 defence in respect of those two publications, and would also have been able to rely on it for the other five: [135]. 

Key points

This case was the first to consider, in detail, the section 4 defence. 

Warby J began by setting out, at [139], a number of broad, undisputed points concerning the operation of the defence.  It was not in dispute, and Warby J found (at [142]), that each of the publications complained of was, or was part of, a publication on a matter or matters of public interest (s.4(1)(a) DA).

He held that S.4(1)(b) DA referred to a defendant’s belief that publication of the words complained of, rather than their defamatory imputation, was in the public interest: [153].  As had been the case under the common law, this allowed some consideration of what the publisher understood the words to mean, although there was a limit to the latitude allowed for ambiguity or unintended defamatory meanings: [159].  Warby J held that, on the facts of this case, the Defendant did believe that publication of the words complained of was in the public interest: [158].

The issue at the heart of this case was whether that belief was reasonable.  This had to be considered in relation to each publication separately: the situation (and consequently the facts and events contributing to the Defendant’s state of mind) was an evolving one (at [161]).

Warby J considered (at [240]) that certain features of the former common law Reynolds defence – expressly abolished by s.4(6) DA – carried through into the new defence: these included (i) flexibility; (ii) adaptability to the circumstances of the individual case; (iii) the recognition that there was little scope under Art.10(2) ECHR for restrictions on questions of public interest; and (iv) the allowance for editorial judgment required by s.4(4) DA.  He considered, at [241], that a belief would be reasonable for the purposes of s.4 DA only if it was one arrived at after conducting such inquiries and checks as it was reasonable to expect of the particular defendant in all the circumstances of the case.  He set out a non-exhaustive list of the circumstances relevant to the question of what enquiries and checks would be needed in a particular case: [241].

In this case, it was relevant that the Defendant was not a “citizen journalist” but closer to a source or contributor and, in the case of the broadcasts, an interviewee: [242].  It would be wrong in principle to require such an individual to undertake all the inquiries that would be expected of a journalist: a contributor could be entitled to rely on the journalist to carry out at least some of the necessary investigation (at [246]).  The defamatory meanings conveyed by the publications were implied, and were secondary to the principal messages, which were all squarely aimed at the CPS: [247].  In addition, the Defendant had limited alternative means of criticising or raising questions about the CPS’s conduct, other than in the manner in which he did: [248].  Applying these principles to the facts and matters set out in detail at [249]-[259], the Defendant’s belief that the publications were in the public interest was reasonable. 

Manuel Barca QC and Ian Helme, instructed by Hanover Bond Law, appeared for the Defendant.

 

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