The impact of the rapid development of the digital technology on data usage and its distribution has become one of the central topics of discussion in modern society. Media has evolved to become one of the main, sometimes the only, aid to remedy a perceived shortfall in other’s characters, be it true, false or speculative in nature. The power of media highlights the seemingly powerful rights conferred under Article 10 of the European Court of Human Rights (“ECHR”). But what are the limits to this power?
Let’s imagine a restaurant manager receiving a complaint about the service provided to a customer. Before the manager even gets a chance to get to the bottom of the issue, it is increasingly likely that the customer will not take long to have the same complaint published on the internet, either on social media or on certain platforms that provide the “feedback or a review” options for restaurant services, such as Trustpilot, Google Review, etc. It all seems quite straightforward as to who is right and who is wrong, is it not?
While the above example may be a momentary action or reaction to the circumstances, it has the potential to lead to a complex legal battle in a claim for defamation. Understanding the available defences and their use by the defendant is equally important to both litigating parties.
The Defamation Act 2013 came into force on 1 January 2014 and has made significant changes to the law and practice in treating the publications. The defence of public interest is highlighted in section 4 of the 2013 Act and reads as follows:
s4. Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
The defence of public interest has its origin originally in the form of the previous Reynolds defence. The Reynolds defence was a defence available to a publisher of a defamatory statement who could prove that publication was in the public interest and that the publisher acted responsibly (Reynolds v Times Newspapers [1999] All ER (D) 1172). With the adoption of the 2013 Act, the concept of Reynolds defence (and the notion of “responsible journalism”) was explicitly abolished and was replaced by section 4 of the 2013 Act. The defendant that would usually avail themselves of this defence would be a journalist who publishes a piece of investigative journalism, whilst the usual claimant will be a public figure, such as politician or a celebrity. It may, however, equally also be available to “citizen journalists.” The defence under s4 has two limbs: public interest and reasonable belief.
Serafin v Malkiewicz [2020] UKSC 23 is the key case that clarified the approach to be taken to section 4 and the public interest defence. Serafin analysed the potential relationship between Reynolds and new section 4(2). In considering the case, the Supreme Court acknowledged that the draft defamation bill included a list of factors similar to the list as set out by Lord Nicholls in Reynolds. However, the list was expressly abandoned, being replaced with s4(2), as it now reads now. In its deliberating on the matter, the Supreme Court highlighted that parliament did not intend to equate the new defence with its old common law equivalent, drawing a clear distinction between the two and effectively abandoning the concept of responsible journalism that was so integral to the Reynolds defence. The Supreme Court highlighted the following factors to be relevant when assessing a section 4 defence:
- To make out the defence under s4, the defence should not violate the operation of Article 8 and/10 of the ECHR.
- The first question to be asked is “whether the statement was on a matter of public interest” (s4(1)(a)) and not “whether the article was in the public interest” (s4(1)(b)). These concepts have an obvious difference in their respective drafting and the former should be satisfied first.
The list in the Reynolds defence is not a mandatory list and it may not always be appropriate to apply it when considering whether the article/statement was “in the public interest”. The Reynolds defence is materially different from that under section 4. References to acting “responsibly” were best avoided given that that concept had been excluded from section 4.
- Publishers are not required to give claimants the opportunity to comment before publication, as it was the case in Yeo v Times Newspapers Ltd [2015] EWHC 3375 (“Yeo”) and in number of other cases preceding Although failure to give an opportunity will be relevant to s4(1)(b), the Supreme Court ruled that it was not a requirement. (paras 52-58, 65, 68-69, 70-78)
The balancing exercise of Articles 8 and 10 ECHR offered further room for deliberation and manoeuvre. The 2013 Act requires balancing exercise with the Articles 8 and 10 ECHR, especially where claimant is a public figure, such as a politician in Yeo. The court will ask questions: (a) whether the Article 10 ECHR right is valuable than the Article 8 ECHR right (the classic balancing exercise); and (b) whether publication undermines ‘personal integrity’ as opposed to merely harming the reputation? In Yeo, the claimant was an MP and a Committee Chair at the time the statements/articles were published. His actions were wholly and exclusively related to his public conduct as a public figure and had no connection to his personal life, removing the need to consider a breach of his right to private life. Therefore, the defendant’s Article 10 ECHR right of freedom of speech prevailed.
While the defence under section 4 is very well known and frequently utilised in the world of journalism, there are also instances where an individual can rely on its defence if they can demonstrate that they hold the role of a “source” or a “contributor” to the statement. In Economou v De Freitas [2018] EWCA Civ 2591 and, more recently, in Packham v Wightman [2023] EWHC 1256 (KB), the Court examined the concept of the defendant being a “citizen journalist”. Although the defence under section 4 failed in the latter case, the Court in Economou confirmed that the same standard is not applicable when the defendant is a citizen journalist. The Court instead held that the public interest defence is more nuanced in favour of Mr De Freitas.
In most circumstances, it might be relatively easy to establish limb1: that statement was on a matter of public interest. However, Limb 2, i.e. “reasonable belief”, will inevitably involve a deeper analysis of the matter as it is not only involves a finding as to the subjective state of mind of the publisher but also an objective assessment of the reasonableness of the belief found to be held. There also remains consideration of section 4(2): “all the circumstances of the case”. The reasonable belief test has also proven to be circumstantial, as in Hay v Cresswell [2023] EWHC 882. Dismissing the claim, Williams J found that it would have been unreasonable to expect the defendant to seek comments from the claimant where the defendant was writing about her own experience.
Citizen journalists should also be wary, as changing circumstances may strip a public interest defence away from under their feet, as occurred in Banks v Cadwalladr ([2022] 2023] EWCA Civ 219. The courts are also wary of automatically conferring the mantle of being a citizen journalist on a self-publisher, as seen in Aaronson v Stones [2023] EWHC 2399, with Julian Knowles J characterising the defendant’s role as a quasi-reporter, or doing a “reporter (sic) kind of role” [385] with a lack of journalistic standards (including verifying the claims) [402], failure to put the story to the claimant [407] and no established urgency to the matter [406]. Given those findings, the Judge unsurprisingly held that the public interest defence was not made out.
Returning to our hypothetical restaurant manager and their complaining (and self-publishing) customer. It is immediately obvious which party succeeds in this hypothetical claim and whether a section 4 defence is realistic. If the customer warned of a risk to public health from the restaurant, it may well be in the public interest. The customer’s publication is also likely to be regarded as being made by a citizen journalist, arguably lowering the threshold for the defence to be successful. But how reasonable was the belief that there was a threat to public health, if the only real threat is to the ego of the customer from poor service?
Dr Anton van Dellen
Nozima Rakhimjonova
Fraser Chambers