Full case report
Alexander Economou v David de Freitas
Reference  EWHC 1853 (QB);  EMLR 4
Court High Court, Queen's Bench Division
Judge The Honourable Mr Justice Warby
Date of Judgment 27 Jul 2016
Libel – newspapers, radio, television – identification – responsibility for publication – meaning – serious harm – publication on matter of public interest – Defamation Act 2013 sections 1 and 4
The Defendant (“D”) was the father of the late Eleanor de Freitas. In December 2012, Ms de Freitas and the Claimant (“C”) had a relationship. In January 2013 she accused him of rape. C was arrested but never charged. In August 2013 C brought a private prosecution against Ms de Freitas alleging that she had accused him falsely, with intent to pervert the course of justice. The Crown Prosecution Service took over the prosecution and continued it. Ms de Freitas denied the charge. Four days before the trial date in April 2014 Ms de Freitas, who suffered from bipolar affective disorder, killed herself.
There was to be an inquest into Ms de Freitas’ death in November 2014. D wanted the inquest expanded to include an examination of the role of the CPS. The Coroner initially ruled against this, and D was advised by his solicitor to “go public”. This he did with a series of media statements and broadcasts in November and December 2014, over seven of which C sued for libel: two articles in The Guardian quoting a press statement written by D, a BBC Radio 4 Today interview of D, and another interview he gave on the BBC TV News channel, reports in The Daily Telegraph and The Guardian of a further press release issued in December 2014 on D’s behalf by his solicitors, and an article written by D himself in The Guardian. The newspaper coverage considered was principally that carried online.
The essence of C’s complaint was that he stood accused by D 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. The truth or falsity of such allegations was not however in issue at the trial since the only substantive defence relied on by D was that under section 4 of the Defamation Act 2013 his statements had been published on a matter of public interest. Aside from that, in relation to the various causes of action, D raised challenges concerning identification, since he had not in any of the words complained of named C, in one instance that he had not been responsible for publication, defamatory meaning and section 1 of the 2013 Act, namely whether the words complained of had caused serious harm to C’s reputation.
(1) Was C referred to by the publications complained of?
(2) Was D responsible for each of the publications?
(3) What if any defamatory meaning about C was conveyed by the words for which D was responsible?
(4) Did publication of the statements complained of cause serious harm to C’s reputation for the purposes of section 1 of the 2013 Act?
(5) Was D entitled to rely on the statutory defence under section 4 of the 2013 Act for publication on a matter of public interest?
(1) Although none of the words complained of did name C expressly, he had pointed to some readers, listeners and viewers of D’s statements who knew enough from the outset to identify C as the man accused by Ms de Freitas. C therefore satisfied (in the main) the objective test of reference (Morgan v Odhams Press Ltd  1 WLR 1239) and would have satisfied any subjective test also if that was the law (but it is not, see Lachaux v Independent Print Ltd  EWHC 2242 (QB),  QB 402).
(2) D was responsible for the publication in the media of statements he made to them and which he authorised to be made to the media on his behalf. Where he could not remember speaking particular words that C had identified, it was nevertheless likely that he did speak them or authorised someone to say them on his behalf because their content and context matched his media strategy.
(3) Five of the seven sets of words complained of bore meanings defamatory of C in the common law sense, albeit not as serious as the meanings pleaded by C. The final words complained of, D’s own article written for The Guardian, was seriously defamatory, with the implication for C being the allegation that there were strong grounds to suspect that he was guilty of rape and had falsely prosecuted Ms de Freitas for perverting the course of justice.
(4) The November items – the first two Guardian articles and the BBC interviews – did not however cause serious harm to C’s reputation. The impression given by his evidence was principally of categories of individual readers, listeners and viewers amongst C’s social circle and to whom he had protested his innocence. They are likely to have trusted him and accepted what he said. While by the end of 2014 C had suffered serious harm to his reputation, that was probably due to information about the facts surrounding the rape allegation and the perverting the course of justice prosecution spread by word of mouth amongst members of C’s social circle or other publications, including those later ones also sued over.
Two of the December items did however on any view cause serious harm to C’s reputation, since by the time they were published the fact that it was C who was a subject of them was widely known, because he had by then been named publicly as the man accused by Ms de Freitas.
(5) The defence under section 4 of the 2013 Act was made out in respect of the two actionable items, and indeed the other five items found not actionable in the light of the various “cause of action” findings (above). It was not in dispute that each of the publications complained of was, or was part of, a publication on a matter or matters of public interest. The Court held further that D believed that the publication of the words he spoke or wrote, or caused others to write, for publication in the media was in the public interest. The final question therefore was whether such belief was reasonable.
In approaching this question there was much to be said for an analysis which required the Court to be guided by the Reynolds checklist (Reynolds v Times Newspapers Ltd  2 AC 127 at 205). Included in this is flexibility and, by statutory definition, adaptability to the circumstances of the individual case. Further, there is a recognition that, as ECtHR put it in Hrico v Slovakia (2005) 41 EHRR 18, there is little scope under Art 10(2) for restrictions on questions of public interest. There is also under section 4(4) of the 2013 Act an allowance for editorial judgment, although that refers to more than just the subjective judgment of a defendant. Taking the relevant circumstances into account here, the defence was made out concerning the November items because: (1) D reasonably regarded the issues raised as matters of considerable public importance; (2) 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; (3) he had some inherently reliable information, having observed some of the history first hand; (4) he had made what, for a person in his position, were reasonable and responsible investigations into the merits of the case against his daughter; he was not bound to accept that the CPS had made a correct decision, and he had sufficient material on which to challenge that view; (5) in each case what he said was “about” the CPS and his daughter; it was targeted at the public authority concerned, not C; (6) he deliberately avoided naming or referring to C; (7) he had, in all the circumstances prevailing at the time of the November publications, no reason to suppose that C would be widely identified by readers, listeners, or viewers, as the man involved; (8) there was a degree of urgency about raising these matters, given the stage that had been reached with the inquest proceedings; (9) it was reasonable for him to leave it to the media organisations concerned to conduct such further investigations, and to solicit such comment (if any) as the public interest required; (10) similarly, as regards C’s “side of the story”, though since the story was about the CPS that was very much a secondary issue; (11) the tone of what he wrote and said was responsible and measured; (12) it was hard to see how D could have expressed his sincere doubts about the conduct of the CPS without the risk of implicit defamation of C. Further, C’s case that there was an improper purpose to D’s contributions in the light of his media strategy was rejected.
So far as the December items were concerned, the Court’s conclusions were on not dissimilar lines. While the information available to D had evolved, since amongst other things he had had a meeting with the Director of Public Prosecutions so as to understand better the CPS decision-making, factors (1)-(3), (5)-(6), (8), (11) and (12) remained the same. Factor (7) no longer applied, since C’s identity was by then publicly known. However it was reasonable in the light of factor (12) not to regard this as in itself a bar to further publication. Factor (4) was critical, in the light of the altered evidential picture, but it is here that “editorial judgment” has a role to play. Nothing in the additional information received by D did change the outcome of the reckoning on that front. Similarly, factors (9) and (10) also continued to apply: D was entitled to place some reliance on the media publishers to conduct such further investigations and to solicit such comment (if any) from C as the public interest required, and similarly so far as concerns the question of including C’s “side of the story”. In these latter respects, with reference to the point discussed but not decided in Hays Plc v Hartley  EWHC 1068 (QB), it is wrong as a matter of principle to require an individual who contributes material for inclusion or use in an article or broadcast in the media to undertake all the enquiries which would be expected of the journalist, if they are to rely on a defence of public interest. The enquiries and checks that can reasonably be expected must be bespoke, depending upon the precise role that the individual plays.
In relation to the earlier, November 2014 items, this case is the latest in a series to emphasise the difficulties created for individual claimants by the Defamation Act 2013 section 1, when it comes to proving with evidence to satisfy a trial judge “serious harm” to reputation. That is so even where publications or broadcasts complained of may reasonably be considered to be seriously defamatory as a matter of language.
But the real feature of note is the Court’s first substantive consideration of section 4 of the 2013 Act, leading to the conclusion that the defence of publication on matter of public interest was made out across the board.
Fieldfisher for the Claimant; Hanover Bond Law for the Defendant
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