Economou v De Freitas: Further guidance on the statutory defence of public interest

In what was the first full trial of the statutory defence of public interest introduced by the Defamation Act 2013, Mr Justice Warby in Economou v De Freitas shed light on the extent to which it reflects the old, common law defence.

Background

The factual background, the Judge agreed, is both striking and tragic. The claimant, Mr Economou, had a relationship with the daughter of the defendant, Mr De Freitas. In January 2013, she accused the claimant of rape. He was arrested, but not charged, and in August of that year brought a private prosecution, later taken over by the CPS, alleging that she had make false accusations against him, with intent to pervert the course of justice (“PCJ”). Ms De Freitas denied the charge and, four days before the trial date, took her own life. The claimant then brought a libel action in respect of various statements made by the defendant in which he aired his wish that the inquest into his daughter’s death be expanded to include an examination of the role of the CPS.

The claimant complained of seven publications, four in November 2014 and three the following month, the later publications coming after an interview given by Mr Economou to the Mail on Sunday giving his side of the story, and a statement from the DPP upholding the CPS’ decision to prosecute. Warby J found that two of the later publications – one a press release issued on behalf of the De Freitas family and partly republished online by the Telegraph, the other an article authored by the defendant and published online by the Guardian – were actionable, in that they bore defamatory meanings and caused serious harm to the claimant’s reputation. Those meanings were, respectively: (i) “that it was questionable whether the CPS and DPP were right to view the evidence of PCJ as strong; and it was a real possibility that Ms de Freitas had told the truth, and had indeed been raped by the man she accused;” and (ii) “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. The implication so far as Mr Economou is concerned was that there were strong grounds to suspect that he was guilty of rape, and had falsely prosecuted Ms de Freitas for PCJ.” He clarified that these were implied meanings, secondary to the principal messages of the articles and broadcasts, all of which he found to be aimed squarely at the CPS.

The public interest defence

The defendant relied on the defence provided for by s.4 of the Defamation Act 2013, the key part of which reads:

“4.— 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.”

The section further obliges the court to consider “all the circumstances of the case”, and to “make such allowance for editorial judgement as it considers appropriate”. The defence should also, according to the Act’s Explanatory Notes, reflect the principles established in the common law or “Reynolds” defence it replaced, which included a ten-point “checklist” for responsible journalism.

Here, it was agreed by the parties and in any event the Judge found, that the publications complained of were on a matter of public interest; the central dispute was whether the defendant reasonably believed that publication was in the public interest. Mr Justice Warby accepted the Defendant’s evidence that he held the requisite belief; the question then was whether that belief was reasonable. In deciding this, the Judge assessed the defendant’s state of mind in the context of the evolving factual position, as well as relevant documents and exchanges evidencing his belief.

Warby J did not accept the claimant’s argument that the court should be guided only, or at least predominantly, by the Reynolds checklist. The claimant argued, for example, that Mr De Freitas took no steps to verify the truth of his allegations, sought no comment from Mr Economou, and had an improper purpose in going public. Instead, the Judge focused on other features of the Reynolds defence that he felt must be reflected in the new one, namely flexibility, adaptability to the circumstances of the case and an allowance for editorial judgment. He also referenced the need, under the European Convention on Human Rights, to demonstrate convincingly that a restriction on the defendant’s right to freedom of expression was necessary and proportionate in pursuit of an identified legitimate aim. Citing the 2005 European Court of Human Rights case Hrico v Slovakia, he recognised that “There is little scope under Art.10(2) of the Convention for restrictions on… questions of public interest…”

Warby J summed up his interpretation of s.4 as follows: “I would consider a belief to be reasonable for the purposes of s 4 only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case. Among the circumstances relevant to the question of what enquiries and checks are needed, the subject-matter needs consideration, as do the particular words used, the range of meanings the defendant ought reasonably to have considered they might convey, and the particular role of the defendant in question.” As to what pre-publication enquiries and checks might reasonably be expected of Mr De Freitas, the Judge rejected the suggestion that his role was that of “citizen journalist”; it was more a source or contributor, entitled to rely on the relevant media organisations to conduct any further investigations and to solicit any further comment as the public interest required. Listing 12 factors showing the reasonableness of the defendant’s belief, Warby J noted that his tone across the publications was reasonable and measured, that he deliberately avoided naming or referring expressly to the claimant, that he was in a unique position to raise the issues he did, and that he would have struggled to express his sincere doubts about the conduct of the CPS without impliedly defaming the claimant. In other words, he had limited room for manoeuvre.

Conclusions

The Judge held that the public interest defence succeeded in respect of all seven publications. His concluding remarks serve as a warning to prospective claimants that defamatory imputations “can cause injury to feelings which is out of all proportion to the harm they cause to reputation”. That said, his lengthy judgment confirms both that the circumstances of the case were unique, and that the public interest defence, in its move to a statutory footing, does not appear to have been radically recast.

Mr Economou was refused permission to appeal but will now re-apply directly to the Court of Appeal.

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