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Economou v de Freitas [2018] EWCA Civ 2591

Case date: 21/11/2018
Court: Court of Appeal (Civil Division)
Area/s of law: Defamation & Reputation Management
Barrister/s: Manuel Barca QC

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1. This was an appeal by C on issues concerning the determination of the ‘reasonable belief’ element of the publication on a matter of public interest defence under section 4 of the Defamation Act 2013, and the serious harm threshold under section 1 of that Act.

2. By a respondent’s notice, D appealed on the determination of meaning in respect of an article written by D and published on The Guardian’s website published on 10 December 2014 (‘de Freitas Article’).

3. The factual background to the proceedings can be found in a One Brick Court case note of the judgment at first instance: available here.

Meaning: de Freitas article

4. Sharp LJ firstly considered D’s cross-appeal in respect of the meaning of the de Freitas Article. At first instance, the de Freitas Article was found to mean that there were strong grounds to suspect that the decision of the CPS to prosecute Ms de Freitas may have been a mistake, as there were strong grounds to doubt there was an evidential case against her; with the implication for C, that there were strong grounds to suspect that he was guilty of rape, and had falsely prosecuted Ms de Freitas for perverting the course of justice (at [14(v)]; see also [124]-[128] of judgment below).

5. D argued that the reasons given by the Judge (at [126]-[127] of the judgment below) for rejecting C’s pleaded meaning of ‘actual guilt’ in favour of a meaning of ‘strong grounds to suspect’ presented a paradox as the Judge’s reasoning seemed to apply equally to either meaning. Further, D argued that no adequate reasons were given by the Judge for the meaning he found the de Freitas Article to bear (at [23]).

6. Sharp LJ noted that the determination of meaning is always a matter of impression, as opposed to a forensic analysis, and concluded that the de Freitas Article read as a whole, could reasonably be understood to mean that there was a strong suspicion that C was guilty of rape (at [24]-[25]).

7. It was common ground between the parties that, following Bukovsky v CPS [2017] EWCA Civ 1529, in an appeal on the determination of meaning, the appellate court should proceed cautiously, and should only intervene if it is satisfied that the judge at first instance was wrong. Sharp LJ was not so satisfied (at [21]).

Serious Harm: section 1(1) of the Defamation Act 2013

8. C appealed on the basis that the gravity of the imputations of the two articles published in November 2014 were such that the Judge should have drawn the inference that they had caused his reputation serious harm, regardless of the sufficiency of the evidence of actual harm called by C to prove this aspect of his case (at [19]).

NB: The Grounds of Appeal in this case pre-dated the Court of Appeal’s judgment in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 (at [19]).

9. There was an obvious link between C’s case on identification and his case on serious harm. C therefore had to establish that there were readers who knew enough to identify him as the man accused of rape and would understand the statements complained of to refer to and defame him. In a case where a claimant is not named in the statement complained of, and there was other publicity about the case (other than in the publications sued on) the assessment of serious harm requires some care (at [29]).

10. In a case where serious harm is contested, and cannot be disposed of summarily, the issue of serious harm is best left to trial, where it can be determined on the evidence (at [40]). Sharp LJ noted that it may be seen to be surprising that such serious imputations found by the Judge could fail to surmount the serious harm threshold; however, the key problems for C were reference and causation. Sharp LJ held that:

The fact that an inference of serious harm can be drawn in an appropriate case does not in my view preclude the sort of causation analysis undertaken by the judge, depending always on the facts” (at [41]).

Public interest defence: section 4 of the Defamation Act 2013

11. The Court of Appeal had to consider the Judge’s determination of the issue raised under section 4(1)(b) of the Defamation Act 2013; namely, whether D had a ‘reasonable belief’ that publication of the statements complained of was in the public interest (at [17]-[18]). Sharp LJ recognised that this raised a number of difficult issues, in particular the extent to which contributors to media publications or ‘citizen journalists’ are subject to the same standard of ‘responsible conduct’ required of professional journalists and the organs in which they publish (at [75]).

12. Commenting on the relationship between the section 4 defence and the common law Reynolds defence, Sharp LJ stated that:

The statutory formulation in section 4(1) obviously directs attention to the publisher’s belief that publishing the statement complained of is in the public interest, whereas the Reynolds defence focussed on the responsibility of the publisher’s conduct. Nonetheless, it seems to me it could not sensibly be suggested that the rationale for the Reynolds defence and for the public interest defence are materially different, or that the principles that underpinned the Reynolds defence, which sought to hold a fair balance between freedom of expression on matters of public interest and the reputation of individuals, are not also relevant when interpreting the public interest defence” (at [86]).

13. Sharp LJ agreed with the Judge that, for the purposes of section 4(1)(b) of the Defamation Act 2013, the phrase “statement complained of” refers to the words complained of rather than the imputation that those words convey: an interpretation which is consistent with other parts of the Defamation Act 2013 (at [92]-[93]). That said, the Judge was right to approach the assessment of reasonableness on the footing that a defendant’s intended meaning may be relevant to his subjective belief, and whether his belief was objectively reasonable (at [95]). This was particularly so on the facts of this case, where the issues of meaning and identification were closely bound together (at [112]). However, it was recognised that such an approach must not be pressed too far and there are limits to the latitude to be allowed for unintended or ambiguous meanings (at [95]; see also [159] of judgment below).

14. In relation to section 4 of the Defamation Act 2013, Sharp LJ made the following observations:

This defence is not confined to the media, which has resources and other support structures others do not have. Section 4 requires the court to have regard to all the circumstances of the case when determining the all-important question arising under section 4(1)(b): it says the court must have regard to all the circumstances of the case in determining whether the defendant has shown that he or she reasonably believed that publishing the statement complained of was in the public interest. In my judgment, all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant in question. The statute could have made reference to the Reynolds factors in this connection, but it did not do so. That is not to say however, that the matters identified in the non-exhaustive checklist may not be relevant to the outcome of a public interest defence, or that, on the facts of the individual case, the failure to comply with one or some of the factors, may not tell decisively against a defendant” (at [110]; emphasis added).

15. It followed that on the facts of this case, the Judge was entitled to conclude:

15.1. That incorporating ‘C’s side of the story’ would have made little sense where the defamatory meanings were implied meanings, and secondary to the principal messages of the articles, which were squarely aimed at the CPS (at [112]); and

15.2. That D had little room for manoeuvre. Whilst D could have added distancing words to the articles, by not doing so, it did not follow that the statutory criteria under section 4 had not been satisfied (at [112]).

Determination

16. The Court of Appeal unanimously dismissed C’s appeal and D’s cross-appeal (and subsequently refused C permission to appeal to the Supreme Court).

Manuel Barca QC, instructed by Hanover Bond Law, appeared for the Respondent

The judgment is available here.

2018-11-30T11:26:00+00:00November 21st, 2018|