High Court provides guidance on the reasonable belief element of the public interest defence under Defamation Act 2013

The High Court has rejected efforts to rely on a public interest defence under section 4 of the Defamation Act 2013 in circumstances where the defendants failed to take proper steps to investigate seriously defamatory allegations prior to publication: Lachaux v Independent Print Ltd & Anor [2021] EWHC 1797 (QB).

This long-running libel action is best known for the landmark judgment of the Supreme Court (on appeals following a trial of preliminary issues) which clarified the requirement of serious harm under section 1(1) of the 2013 Act – see here for our post on the Supreme Court decision in 2019, here for our post on the Court of Appeal decision in 2017 and here for our post on the High Court decision on preliminary issues in 2015.

This latest judgment now provides helpful guidance for publishers seeking to rely on the public interest defence under section 4 of the 2013 Act in respect of defamatory material. In particular, emphasis is placed on the importance of taking steps to verify serious allegations and of putting the allegations to any person who is likely to be seriously defamed prior to publication. Allowance will only be made for editorial judgment if proper consideration is given to the necessity for and proportionality of the potential reputational harm caused by publication.

Publishers looking to rely on the public interest defence would therefore be well advised to keep a contemporaneous audit trail of decisions which lead to publication – including steps taken to verify serious allegations and efforts made to contact relevant individuals for comment – in line with journalistic codes of practice.

Background

The court heard libel claims brought by the claimant against two defendant news publishers in respect of two articles, published in 2014, each containing allegations made against the claimant by his ex-wife of domestic abuse and child abduction.

It was found at a trial of preliminary issues that the claimant had suffered serious harm to his reputation as a result of the publications. This finding was endorsed by the Court of Appeal and the Supreme Court.

The claim proceeded to trial, at which the defendants sought to rely on a defence of public interest under section 4 of the 2013 Act.

Decision

The court (Nicklin J) ruled that the public interest defence failed.

Nicklin J therefore found in favour of the claimant and awarded him £120,000 in total damages. He also granted an injunction and an order under section 12 of the 2013 Act requiring the defendants to publish a summary of the court's decision.

The public interest defence

There are two parts to the statutory defence of public interest under section 4 of the 2013 Act. First, the defendant must show that the statement complained of was or formed part of a statement on a matter of public interest. Secondly, the defendant must show that they reasonable believed that publishing the statement complained of was in the public interest. In assessing these matters, the court must have regard to all the circumstances of the case.

The first part of the defence requires the court to reach an objective conclusion, irrespective of the subjective judgment of the publisher. In this case, Nicklin J was satisfied that both of the articles complained of were on matters of public interest.

The second part of the defence requires the defendant to prove that they subjectively believed that publication was in the public interest and that such belief was reasonable. Nicklin J confirmed that the Reynolds factors (which had shaped the common law defence known as the Reynolds or "responsible journalism" defence abolished by the 2013 Act) remained potentially relevant when assessing the reasonableness of a defendant's belief under section 4 of the 2013 Act. In respect of continuing publication, this included consideration of any significant change in circumstances since the original publication.

Nicklin J found that the first defendant had failed to demonstrate an actual belief that publication of its article was in the public interest, as the relevant editor could not recall his state of belief at the relevant time. Nicklin J accepted, on the facts, that the second defendant had demonstrated an actual belief that its publication was in the public interest.

However, Nicklin J found that neither defendant could demonstrate a reasonable belief that publication was in the public interest. This was due to their failure to take proper steps to verify the very serious allegations prior to publication, to contact the claimant to put the allegations to him or to include anything in the article that the claimant may want to say in rebuttal of the allegations or to offer any reason to doubt the credibility of the allegations. The first defendant had not sought to contact the claimant at all to put the allegations to him; the second defendant had only done so (unsuccessfully) on the day of publication. In deciding this issue, Nicklin J considered it appropriate to have regard to the relevant codes of practice noting that adherence (or lack of adherence) to such codes is a relevant factor that the court can take into account when considering the objective question of whether the relevant defendant's belief was reasonable.

As such, Nicklin J concluded that both articles were seriously defamatory of the claimant and materially one-sided. He held that this was not the product of a carefully reasoned editorial judgment but rather a clear mistake in each case.

Continued online publication

Nicklin J also considered whether continued publication of the articles was in the public interest after: (i) the defendants received the claimant's answer to the allegations made against him, for the first time, by way of his letters of claim; and (ii) a judgment was handed down in the family proceedings between the claimant and his ex-wide which made factual findings that undermined the allegations published about the claimant.

Nicklin J found that the continued publication of the articles in view of this additional information, with only very limited amendments made to include the claimant's rebuttal of the allegations, was not reasonable. As such, the section 4 defence for the continued publication of the articles following these events also failed.