Public interest defence to defamation clarified

Out-Law News | 05 Jun 2020 | 10:21 am | 2 min. read

Principles of 'responsible journalism' previously established under the common law in England and Wales do not provide a definitive checklist for assessing whether publishers have a statutory public interest defence to defamation claims, the UK Supreme Court has said.

The court said, though, that factors relevant to the old 'Reynolds defence' to defamation claims, which previously protected journalists against claims brought against them if they were able to show they had engaged in responsible journalism serving the public interest, may continue to be relevant to the assessment of whether the statutory defence that replaced it applies.

Under the Defamation Act 2013, claimants must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation in order to bring a claim for defamation against the publisher of the statement.

However, section 4 of the Act provides publishers with a defence against such claims where the statement complained of was, or formed part of, a statement on a matter of public interest; and the person accused of defamation reasonably believed that publishing the statement complained of was in the public interest.

When this statutory public interest defence was introduced, the Act also "abolished" the 'Reynolds defence' to defamation. In the Reynolds case, the House of Lords outlined 10 factors, later developed under the common law, which might be taken into account when assessing whether journalists engaged in responsible journalism and thus had a defence against claims of defamation, even if what they reported turned out to be false.

The Court of Appeal previously described those factors as a "check list" that is "relevant" to "the existence of public interest in the article". However, the Supreme Court said the Court of Appeal had erred on that point by conflating the issue of whether an article is in the public interest with whether it is on a matter of public interest, which the statutory defence under section 4 of the Defamation Act makes a distinction between.

The Supreme Court said that it is "inappropriate" to view the 10 factors of the Reynolds defence as a "check list" for assessing whether publishers have a defence to defamation under section 4 of the Defamation Act and also indicated that "reference to acting 'responsibly' is now also best avoided".

"It is wrong to consider that the elements of the statutory defence can be equiparated with those of the Reynolds defence," the Supreme Court said.

The court also confirmed that journalists will not always be required to have provided subjects of stories with a "prior invitation to comment" to benefit from the statutory public interest defence under section 4 of the Defamation Act. However, it acknowledged that "one or more of [the Reynolds defence factors] may well be relevant" to whether a publisher's belief that the statement complained of was in the public interest was "reasonable", as is required for the public interest defence under the Act to apply.

Media law expert Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law, said: "The SC’s judgment provides useful clarification regarding the defence under section 4 of the Defamation Act 2013. In particular, it warns against treating the Reynolds factors under the previous common law defence as a checklist, or alluding to any one particular factor as a ‘requirement’ in order to benefit from the statutory defence under section 4."

The comments of the Supreme Court in relation to the public interest defence under the Act were set out in an unusual judgment in which the court ordered a full retrial in a case concerning claims for defamation. The case involves a Polish newspaper and two senior editors at the publisher who are together accused of defaming Polish-born Jan Serafin in an article published about him in October 2015.

A trial in the case was previously conducted before the High Court in London, with the sitting judge ruling in favour of the publisher and editors, finding that they had a public interest defence against the claims of defamation raised against them. However, the Supreme Court has held that the initial trial in the case before the High Court had been unfair because the judge hearing the case did not allow the claim for defamation to be "properly presented".