Economou v de Freitas [2018] EWCA Civ 2591, [2019] EMLR 7

Key Points

  • While the Reynolds defence is abolished under s.4 Defamation Act 2013, the criteria under the Reynolds defence is still relevant to assessing whether the public interest defence under s.4 is met
  • A non-journalist may be held to a lower standard than professional journalists when having their reasonable belief under s.4(1)(b) Defamation Act 2013 assessed

Facts

  • The defendant’s daughter, Ms De Freitas, accused the claimant of rape, upon which the claimant was arrested but not charged
  • The claimant brought private prosecution against Ms De Freitas for perverting the course of justice by falsely accusing him of rape. Four days before the trial, Ms De Freitas killed herself (by this time the Crown Prosecution Service (‘CPS’) had taken over the trial)
  • The defendant through numerous media statements complained about the CPS continuing the prosecution of his vulnerable daughter, even where there was a lack of evidence that she had lied about the rape
  • The claimant sued the defendant for defamation but was unsuccessful as the trial judge held that the defence of public interest under s.4 Defamation Act 2013 applied
  • s.4(1)(b) Defamation Act 2013 states that for the defence under s.4 to apply, the defendant must have reasonably believed that publishing the statement complained of was in the public interest
  • The claimant appealed, inter alia, that s.4(1)(b) Defamation Act 2013 is not met as the defendant was not entitled as a “mere contributor” to rely on the media publications to verify his claims

Held (Court of Appeal)

Appeal dismissed; the Court found that the trial judge had not erred in his assessment of the defendant’s eligibility for a defence under s.4 of the Defamation Act 2013

Sharp LJ

Interpretation of s.4 Defamation Act

  • The common law principles of the Reynolds Defence is still relevant: “it could not sensibly be suggested that the rationale for the Reynolds defence and for the public interest defence are materially different, or that the principles that underpinned the Reynolds defence, which sought to hold a fair balance between freedom of expression on matters of public interest and the reputation of individuals, are not also relevant when interpreting the public interest defence.”: [86]
  • “This defence is not confined to the media, which has resources and other support structures others do not have. Section 4 requires the court to have regard to all the circumstances of the case. In my judgment, all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant in question.”: [110]
  • “The statute could have made reference to the Reynolds factors in this connection, but it did not do so. That is not to say however, that the matters identified in the non-exhaustive checklist may not be relevant to the outcome of a public interest defence, or that, on the facts of the individual case, the failure to comply with one or some of the factors, may not tell decisively against a defendant”: [110]

Current case

  • Crucial for the trial judge’s finding had been that the defendant was not a journalist, his role being closer to that of a source or contributor, and thus he should be held to a lower standard when assessed for his reasonable belief that publication of his statement would be in the public interest: [104]
  • “The individual criticisms of the factors taken or not taken into account by the judge, which largely focus on the December publications, are to my mind, unpersuasive.”: [112]
  • “As for verification, the position on the judge’s findings was not that the defendant left it all to the media, but that … the defendant had some inherently reliable information and had made what, for a person in his position were reasonable and responsible investigations into the merits of the case against his daughter.”: [112]