Full case report

Vassiliev v Frank Cass & Co Ltd

Reference [2003] EWHC 1428 (QB); [2003] EMLR 761
Court Queen's Bench Division

Judge Eady J

Date of Judgment 13 Jun 2003


Summary

Defamation – Libel – Qualified privilege – Reply to attack – Friend of deceased victim – Original victim having no claim in libel – Common interest privilege – Publication in specialist journal – Publication on internet – Reynolds privilege


Facts

The Claimant co-wrote a book based to a large extent on research carried out by the Claimant on “top secret” KGB documents. A theme of the book was that Alger Hiss had been a Soviet spy during World War II. The Defendant published an article by a long-term friend and supporter of Alger Hiss, including a passage stating that the KGB materials published in the Claimant’s book offered “no credible support” for the proposition that Hiss was a spy. At trial the jury agreed that the article was defamatory of the Claimant. The Defendants relied on qualified privilige on th grounds of: (1) common interest; (2) reply to attack, and; (3) Reynolds.


Issue

(1) Whether the Defendant was protected by common interest privilege.
(2) Whether the Defendant was protected by reply to attack qualified privilege.
(3) Whether the Defendant was protected by Reynolds privilege.


Held

(1) Common interest privilege applied. The article was published in a specialist journal with a specialist and exclusive readership. Eady J drew attention to the dissenting judgment of Lord Denning MR in Drummond-Jackson v BMA [1970] 1 WLR 688 CA. That the article was also available in libraries and on websites did not affect the claim as casual readers or surfers would not in practice read the article. (2) The Defendant’s allegations were a proportionate response to the attack on Mr Hiss. It did not matter that the Defendant was not a representative or close relative of Mr Hiss, being a friend of his with a long-standing interest was sufficient. It did not matter that the victim of the attack would not have had a cause of action in libel. (3) Having ruled in favour of the Defendant on (1) and (2), Eady J held that he did not need to resolve the issue of Reynolds.


Comment

‘Reply to attack’ privilege has been a particularly fruitful and expanding line of defence for defamation defendants in recent years. This decision by Eady J marks a further expansion of it, in that the Defendant was neither a representative nor a close relative of the deceased Mr Hiss (as in Bowen-Rowlands v Argus Press Ltd (1926)), but rather a friend with a long-standing interest in the Hiss saga. Further, Hiss would not have been able to bring a libel claim himself due to a conviction for perjury for denying his alleged spying activities.
The decision also has significant ramifications for the publication of academic articles on the internet. It seems that a claim to common interest privilege will not be invalidated by publication on the internet per se, but rather its effect on the claim will depend on the content of the article and where on the internet it is published.


Instructing Solicitors

Hartwig for the Defendant