Economou v David De Freitas
In Economou v David De Freitas (Rev 1) [2016] EWHC 1853 (QB) (27 July 2016) this case was the first to look in detail at the defence of public Interest in accordance with s.4 of the new Defamation Act 2013. The Defendant was the father of Eleanor de Freitas who had been in a previous relationship with the Claimant. In January 2013, she accused him of rape, he was not charged by the Police. In August 2013, he commenced a private prosecution against her where he alleged she had made false accusations against him so as to pervert the course of justice. The CPS dealt with the matter. The Defendant’s daughter denied this and four days before the matter came to trial in April 2014 she killed herself, she had suffered from a bipolar disorder.
The Defendant requested that his daughter’s Inquest be extended to deal with the role of the CPS. The Coroner initially ruled against this but intimated he would hear argument in that respect. The Defendant had been advised to raise the issues publicly whereupon in November and December 2014 he gave press, radio and TV interviews and also wrote an article.
The Claimant complained of libel in two BBC broadcasts, five newspaper articles which included four in The Guardian and one in the Daily Telegraph. The publications did not name the Claimant but he argued that he could be and was identified in the words complained of with the meanings in respect of the publications complained of differing
“but the essence of his complaint is that he was accused of having falsely prosecuted Ms De Freitas for perverting the course of justice by accusing him of rape, when the truth was that he had raped her”.
Mr Justice Warby considered from the seven publications that the Claimant complained of only two were actionable. They specifically identified the Claimant, had a defamatory meaning and caused him serious harm. The other five publications did not contain the defamatory or serious harm elements.
The defence relied on is provided for by s4 of the Defamation Act 2013.
“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.
(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.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the clamant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished.”
In respect of a Public Interest Defence, he considered this was present in all of the seven publications as to how the CPS prosecution was conducted in respect of whether there had been enough evidence to prosecute the Defendant’s daughter, and if her fragile mental condition had been properly assessed by them prior to proceeding.
Mr Justice Warby accepted the Defendant believed that the publication of words “he spoke or wrote, or caused others to write, for publication in the media was in the public interest”. He observed that the issue was if “such belief was reasonable”.
He considered that, in accordance with s.4 of the Defamation Act 2013, for a belief to be reasonable it would be necessary for a Defendant to carry out “such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”. He observed that it is how these circumstances and those of the other publications which have been complained of affect how to deal with “the Reasonable Belief requirement”.
In this case, it was relevant that the Defendant was not a “citizen journalist” but more akin to a source or contributor and, in the case of the broadcasts, an interviewee. He considered it would be wrong in principle to require such an individual to undertake all the inquiries that would be expected of a journalist, a contributor could be entitled to expect the journalist to carry out some of the investigations.
He considered that the defamatory meanings contained in the publications were all implied meanings and were aside to the main thrust of the articles and broadcasts which were aimed at the CPS and “to a large extent necessarily implied”.
He observed what the Defendant did was to criticise and question the conduct of the CPS, not naming the Claimant or making express reference to him which he said should be taken into account to assess the reasonableness of the Defendant’s belief.
With regard to the November articles he found that the Defendant’s belief that the publications were in the public interest to be reasonable and listed his reasons within his judgment such as the Defendant “reasonably regarded the issues raised as matters of considerable public importance; he was in a unique position to raise the issues, with reference to the tragic circumstances of an individual case, which was likely to catch public attention about the CPS that was very much a secondary issue;” He observed that it would have been hard for the Defendant to express his doubts as to the conduct of the CPS without running the risk of implicitly defaming the Claimant. He commented that he had rejected the Claimant’s argument “that there was an improper purpose to Mr De Freitas’ contributions”.
He considered that the Defendant’s belief that the words publicised in the December articles was in the public interest to be a reasonable belief and “the claims in respect of the Telegraph Article and the De Freitas Article fail. The claim in respect of the Third Guardian Article would have failed in any event, for reasons given above”.
Mr Justice Warby’s judgment differentiated between the Defendant as a Father whose daughter had died and the journalist whose purpose would have been in having his story published. Further, it highlighted that the Defence of Public Interest under the Defamation Act 2013 will look at the actual circumstances of the matter and the conduct of the Defendant in publishing the words complained of.