Tuesday, July 23, 2024

Publish and be Damned

Publish and be Damned

In times of political turmoil, scandal and rumour, the first casualty is always the truth. Reading conflicting reports in the press and social media can leave even the most discerning of us scratching our heads. It’s not unusual to feel a little lost in the mayhem.
Yet spare a thought for the news publisher, who may find themselves in a trash-covered minefield, where any publication could blow up in their face, leaving them facing expensive lawsuits and public humiliation. But the public love a good rumour, and occasionally rummaging in the minefield will turn up some gold.
According to defamation solicitors in London, it sometimes feels a story is too ‘important’ not to publish, and in order to stay ahead of the pack, eye-wateringly costly decisions, taken in the absence (and likely lack of) any tangible evidence, are made against the clock. Those journalists who do so responsibly, if and when they are sued for such things, might be able to rely on the defence of public interest under s4 of the Defamation Act 2013.
 When an action in defamation is brought, a defendant may rely on a defence of public interest alongside a variety of other defences. The most clear-cut of these is the defence of truth – a statement is not defamatory if it is true. This is not always possible in the circumstances, and a public interest defence is sometimes viewed as a ‘fall back position’ – ie. The Defendant can accept in hindsight that the article was false, but they were entitled to publish it as it was in the ‘public interest’.
 In deciding whether the defence is made out, the court will consider two points:
  • Was the defamatory statement on a matter of public interest?
  • Did the defendant reasonably believe publishing the statement was in the public interest?

So what is a ‘matter of public interest’?

The case of Jameel (which was decided before the 2013 Act) helped (slightly) clarify that it was not something that was simply ‘newsworthy’ (that could apply to pretty much anything), but nor that it was so strict as to only be something that ‘the public needed to know’. The case of Reynolds also said the court should lean in favour of deciding something was in the public interest. The court has held a wide range of issues as being in the public interest, from animal rights issues, to political scandals, to legal decisions. A defendant may show that they have been interested in drawing attention to a certain area and the statement complained of forms part of their campaigning. The first limb is often the easier one – a court will ordinarily know a matter of public interest when it sees one.

Whether or not a defendant acted ‘reasonably’ is a tougher question.

Living in a free country means having a free press, and a free press needs to be able to operate without fear of recrimination where it behaves reasonably.

Since the 2013 Act, the case of Economou v de Freitas has helped demonstrate that whilst the court may be flexible in its determination (de Freitas was not a professional journalist, and therefore could not reasonably have been expected to go to extraordinary lengths to back up his statement), there is still an expectation for defendants to take steps to verify contentious information, seek comments from the individuals who are implicated by the statement, and monitor the tone and weight of the article, amongst other things. However, the case of Serafin, encouraging a departure from the Reynolds ‘check-list’ way of thinking, stated that determining reasonableness is not a checklist but a holistic interpretation as to how the editorial decision was reached (in line with s4(2) of the 2013 Act).
So how does a Claimant, faced with a false statement published about themselves, overcome this defence?
Taylor Hampton acted last year for the Claimant Bruno Lachaux against the Evening Standard and the Independent. Mr Lachaux, who had been falsely accused of marital abuse and the misuse of the UAE legal system, had not been contacted for a right of reply, a major omission by the newspapers.
 The judge at trial was highly critical of the defendants’ approach. The journalists behind the publications had kept no contemporaneous notes or records of their decision-making process. Noting that most other professions are reliant on carefully maintained records to justify their decisions, the judge decided that the defendants could not have reasonably believed the statements were in the public interest.
 The stated purpose of the 2013 act was to increase the safeguards for the press and champion freedom of expression. But the press must not abuse the privilege they have been given, and must always act responsibly.

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