Harcombe v Associated Newspapers Ltd

The claimants were respectively (Ms Harcombe) a researcher and writer on diet health and nutritional science and (Dr Kendrick) a GP and writer on the epidemiology of cardiovascular disease. The defendants were the publisher of the Mail on Sunday newspaper and its health editor, Barney Calman.

The claimants complained in libel of a series of articles published in the Mail on Sunday written by Mr Calman bearing variously the headlines “Deadly propaganda of the STATIN DENIERS“, “‘It’s worse than the MMR scare’ “, “REVEALED: TRUTH ABOUT THE THREE ‘EXPERTS’ WHO SAY DON’T TAKE STATINS” and “There is a special place in hell for the doctors who claim statins don’t work“.

The Court directed that certain issues should be tried first, leaving over to a second trial the defences of truth and honest opinion. These issues were: the defendants’ public interest defence under s.4 Defamation Act 2013; then, because of the effect of Curistan v Times Newspapers Ltd [2009] QB 231, defences of privilege under s.15 Defamation Act 1996 and s.6(5) Defamation Act 2013 in respect of some parts of the articles as a precursor to determining the issues of meaning and fact or opinion; and furthermore the question of whether Mr Calman held any defamatory opinions the Court found the articles to bear for the purposes of s.3(5) Defamation Act 2013.

1. Did the defendants have a public interest defence to the claims under s.4 Defamation Act 2013?
2. If not, did privilege attach to certain specified parts of the articles complained of under s.15 Defamation Act 1996, Sch.1, para.7 or 9 or s.6(5) Defamation Act 2013?
3. What were the natural and ordinary meanings of the articles and did one of the online articles bear the innuendo meaning contended for by the claimants?
4. To what extent did those meanings consist of defamatory imputations of fact or opinion?
5. Insofar as they consisted of defamatory imputations of opinion, did Mr Calman hold those opinions for the purposes of s.3(5) Defamation Act 2013?

1. The s.4 public interest defence would be dismissed in respect of all the publications complained of. The defendants had failed to demonstrate that Mr Calman’s belief that the publication was in the public interest was, in all the circumstances, a reasonable one. “There is perhaps a palpable irony in the fact that the Defendants, in Articles that so roundly denounced those alleged to be the purveyors of misinformation, so seriously misinformed their own readers” (judgment, [457]).
2. Privilege for a report of a peer-reviewed scientific article would be upheld under s.6(5) Defamation Act 2013 in respect of certain passages in the articles. However, the defence of reporting privilege under s.15 Defamation 1996 would be dismissed. The defendants had reported remarks made by the then Health Secretary, Matt Hancock MP, neither fairly nor accurately. “The treatment of the Hancock Statement in the News Article…would have given readers the clear impression that Mr Hancock…apparently in full knowledge of the allegations contained in the Article, had “thrown his weight behind a Mail on Sunday campaign” and made a “passionate” public statement denouncing the Claimants…for their “pernicious lies“…As the Defendants knew, he had done no such thing” (judgment, [169]).
3. Applying Curistan and taking due account of the fact that certain passages in the articles had been held to be privileged, the main article as published in the print newspaper, meant (i) that each claimant had made public statements about statins which were dishonest, (ii) that there were strong grounds to suspect that they had made these knowingly false statements motivated by the hope that they would benefit from doing so either financially or from enhanced status, (iii) that the direct effect of the publication of these statements by the claimants was to cause a very large number of people not to take prescribed statin medication and thereby to expose them to a serious risk of a heart attack or stroke, causing illness, disability or death, (iv) in consequence, each claimant was rightly to be condemned as a pernicious liar, for whom there was a special place in hell, whose lies, deadly propaganda, insidious fake news, scare stories, and crackpot conspiracy theories had recklessly caused a very large number of people, including a heart attack patient described in the articles, for whom the proven benefits of taking statins were demonstrated by indisputable scientific evidence, to stop taking them, risking needless deaths and causing harm on a scale that was worse than the infamous MMR vaccine scandal (judgment, [516]). The other articles bore similar meanings concerning the claimants, as did one of the online articles by innuendo.
4. (i) to (iii) were defamatory imputations of fact, while (iv) was a defamatory opinion (judgment, [517]).
5. Mr Calman did not hold the opinion set out in (iv) (judgment, [559]-[560]).

In the light of the Court’s findings on meaning and the issue under s.3(5) Defamation Act 2013, the defendants’ truth and honest opinion defences cannot be maintained, as Nicklin J noted in his judgment at [563]. Accordingly, subject only to the possibility of a successful appeal and/or application for permission to amend, the claimants will be entitled to proceed to a damages and remedies hearing.

Otherwise, there is much in Nicklin J’s judgment that is significant in law. In particular:

(1) It provides a definitive ruling on how Curistan is to be interpreted and applied.

(2) It comprehensively reviews the case law on reporting privilege under s.15 Defamation Act 1996, Sch.1, paras.7 and 9 (privilege for fair and accurate copies of, extracts from and summaries of ‘governmental statements’).

(3) It contains the first ruling on the correct interpretation of s.6 Defamation Act 2013, the privilege defence for peer-reviewed scientific publications, and in particular s.6(5) of the Act, which is held to confer a general privilege for the press and anyone else to report on material which can be shown to attract a defence under s.6(1) of the Act.

(4) It addresses the law concerning malice in the context of reporting privilege and reconsiders Tugendhat J’s approach to the issue in Qadir v Associated Newspapers Ltd [2013] EMLR 15.

(5) It contains the first ruling under s.3(5) Defamation Act 2013 (honest opinion).