By Dr Anton van Dellen, Barrister, Fraser Chambers &
Dr Samrat Sengupta, Pupil Barrister, Fraser Chambers

The Defamation Act 2013 (“the Act”) marked an attempt to codify some of the pre-existing common law. However, this process has been criticised as potentially introducing further uncertainty. Some of the key areas where further complexities arose are in two of the available defences.

This article will specifically look at two cases which highlight the Court’s approach to two key defences. Prior to analysing the cases, it is important to underscore that the Act, in the interest of the public purse and cost management, felt it was prudent to remove jury trials in defamation cases.  Some of the cases described below may potentially have been better addressed by jury trials than by a judge sitting alone.

Honest opinion defence – Section 3 of the Defamation Act 2013

Corbyn v Millet [2020] EWHC 1848:

The case involved a comment that Jeremy Corbyn, the then opposition leader, made in the Andrew Marr show broadcast on 23 September 2018. In the show, he was shown a recording of a speech he made in 2013 in which he said “Zionists … don’t understand English irony”. When questioned by Mr Marr, Mr Corbyn replied that the comment referred to an incident in which two individuals in a meeting at the House of Commons became “disruptive” and “abusive” towards Mr Hassassain who was the Palestinian ambassador to the UK at the time. Mr Millet sued Mr Corbyn for defamation on the basis that the comments readily identified him as one of the “Zionists”. In his defence, Mr Corbyn averred that the comments were statement of opinion and not facts. In his appeal, Mr Corbyn submitted that the judge erred by holding that his comments were fact and not opinion. In the Court of Appeal, Warby LJ concluded that Mr Corbyn’s comments were indeed facts and not opinion. In his analysis, Warby LJ noted that the question of whether a comment is opinion should be answered from the perspective of an “ordinary reasonable reader”. Rejecting Mr Corbyn’s argument, Warby LJ highlighted at [22]: “In the particular words complained of he was, in my judgment, presenting viewers with a factual narrative: the people referred to had disrupted several meetings at the House of Commons; at one such meeting they had been extremely disruptive; and on the most recent occasion, whilst they had let Mr Hassassian speak, they had subjected him to extreme abuse afterwards. This would all have struck the viewer as Mr Corbyn’s explanation of the factual background to his statement about ‘English irony’”. The Court of Appeal also cited Koutsoganiannis v The Random House Group LTD [2019] EWHC 48 in which the definition of “bare comment” was noted. In Koutsoganiannia, Nicklin J held at [16](iv): “Some statements which are, by their name and appearance opinion, are nevertheless rated as statement of facts where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment”. In Corbyn v Millet, Warby LJ concluded that Mr Corbyn’s statement met the threshold of bare comment and was therefore a statement of fact.

The appeal was dismissed. The case demonstrates that while the Act attempted to codify the common law defence of honest opinion, there remains an area of further exploration in relation to the threshold when a bare comment becomes an opinion.

 Public interest defence – Section 4 of the Defamation Act 2013.

 The public interest defence, as set out in Section 4 of the Act, lies at the heart of the balance between the right to privacy under Article 8 of the European Convention on Human Rights (as enacted in the Human Rights Act 1998) and the right to freedom of expression under Article 10.

Serafin v Malkiewicz and Others [2020] UKSC 23 (“Serafin”).

The key case that considered and examined the Section 4 public interest defence was Serafin v Malkiewicz and Others [2020] UKSC 23 (“Serafin”). Mr Serafin had operated a food business since 2008. The business went into liquidation and Mr Serafin was declared bankrupt in 2011. The defendant, Nowy Czas, a newspaper for the Polish community, published an article titled “Bankruptcy need not be painful”. The article stated that the Claimant was “a bankrupt and serially untrustworthy man who in order to satisfy his ambition and financially benefit himself and his family in Poland, took improper advantage of a number of people including women.” Mr Serafin claimed that there were 13 separate defamatory meanings, including that he had abused his position to award himself contracts for maintenance work and diverted charitable funds to himself.

At trial, the Claimant represented himself. The High Court dismissed the claim and held that the Section 4 defence was engaged because it was reasonable for the Defendants to have believed that the publication was a matter of public interest. The Claimant appealed and the appeal was allowed. The Court of Appeal rejected that contention the public interest defence was engaged.

The Defendants appealed to the Supreme Court. The Supreme Court clearly delineated the difference between the previous Reynolds common law defence and the Section 4 defence of public interest. Reynolds adopted an approach of “responsible journalism” which was measured by reference to a list of 10 factors. However, in the Act, the Section 4 public interest defence explicitly replaced the Reynolds common law defence. While the new defence draws broadly on the principles of Reynolds, the two defences are distinctly different. Section 4 defence is available if “the statement complained of was, or formed part of, a statement on a matter of public interest” (s4(1)(a)) and “the defendant reasonably believed that publishing the statement complained of was in the public interest” (s4(1)(b)) (emphases added). The key difference between the Reynolds common law defence and the Section 4 defence was explained by Lord Wilson at [62] (with whom the other 4 Justices of the Supreme Court agreed): “Instead of providing that the defendant should have acted responsibly in publishing the statement complained of, the form of words now proposed was that the defendant should have reasonably believed that publishing the statement complained of was in the public interest.” While it may be said that the rationale for the tests in the Reynolds common law defence and the Section 4 defences are not materially different, Lord Wilson held at [72]: “it is wrong to consider that the elements of the statutory defence can be equiparated with those of Reynolds defence”.

Section 4(2) of the Act also underscores that: “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”. Lord Wilson concluded at [79]: “In the light of the above I am driven, with a degree of embarrassment in relation to respected colleagues, to suggest that the new judge should determine the availability of the public interest defence without reference to the reasoning which led the Court of Appeal to conclude that the defendants had met the requirements neither of section 4(1)(a) nor of section 4(1)(b) of the Act.”

In Bonnick v Morris [2003] 1 AC 300, a Privy Council appeal from Jamaica, Lord Nicholls aptly pointed out that: “The Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have benefit of the privilege journalists must exercise due professional skill and care.”  The test of responsible journamislm has now been clearly replaced in the codification in Section 4 of the defence of public interest in the Act.  Following Serafin, there is no doubt that freedom of speech has been significantly strengthened.

Conclusion

The two cases above highlight the complex interplay between the Act and the preceding common law. The Act came into force on 1 January 2014 and aimed to codify some of the pre-existing common law in defamation. However, this task was self-evidently not a simple one. While on one hand it has been able to codify the defences of honest opinion in Section 2 and public interest in Section 4, the process has flagged up further complexities requiring additional analysis. In the interests of justice, some issues, such as whether an opinion was honestly held or whether there was a reasonable belief, can be addressed effectively by a jury trial as opposed to a Judge sitting alone. As further cases emerge, our understanding of the ambit of these defences is likely to be improved.

Dr Anton van Dellen, Barrister, Fraser Chambers and

Dr Samrat Sengupta, Pupil Barrister, Fraser Chambers