The rapid development of digital technology has significantly impacted data usage and distribution, making it a central topic of discussion in modern society. Media has evolved to become a primary means of addressing perceived shortcomings in others’ characters, whether true, false, or speculative. The power of media highlights the rights conferred under Article 10 of the European Court of Human Rights (ECHR), but the limits of this power are still being explored.
A restaurant manager receiving a complaint about service is a common scenario. However, with the rise of social media and review platforms like Trustpilot and Google Review, it’s increasingly likely that the customer will publish their complaint online before the manager can investigate. This can lead to a complex legal battle in a claim for defamation, making it essential to understand the available defenses and their use by the defendant.
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Public Interest Defence
The Defamation Act 2013, which came into force on 1 January 2014, has made significant changes to the law and practice surrounding publications. The defense of public interest is highlighted in section 4 of the 2013 Act, which states that it is a defense to an action for defamation if the defendant can show that the statement complained of was on a matter of public interest and that they reasonably believed publishing the statement was in the public interest.
The defense of public interest has its origin in the previous Reynolds defense, which was available to publishers of defamatory statements who could prove that publication was in the public interest and that they acted responsibly. However, with the adoption of the 2013 Act, the concept of Reynolds defense was explicitly abolished and replaced by section 4. The defendant that would usually avail themselves of this defense would be a journalist who publishes a piece of investigative journalism, while the usual claimant will be a public figure, such as a politician or celebrity.
The case of Serafin v Malkiewicz [2020] UKSC 23 clarified the approach to be taken to section 4 and the public interest defense. The Supreme Court acknowledged that the draft defamation bill included a list of factors similar to the list set out by Lord Nicholls in Reynolds, but this list was expressly abandoned. The Court highlighted that parliament did not intend to equate the new defense with its old common law equivalent, drawing a clear distinction between the two and effectively abandoning the concept of responsible journalism that was integral to the Reynolds defense.
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In considering the case, the Supreme Court identified several factors relevant to assessing a section 4 defense, including whether the statement was on a matter of public interest and whether the defendant reasonably believed that publishing the statement was in the public interest. The Court also noted that failure to give the claimant an opportunity to comment before publication may be relevant to the reasonable belief test.
The balancing exercise of Articles 8 and 10 ECHR is also important in determining the success of a section 4 defense. The Court must consider whether the Article 10 ECHR right is more valuable than the Article 8 ECHR right and whether publication undermines personal integrity as opposed to merely harming reputation. In the case of Yeo v Times Newspapers Ltd [2015] EWHC 3375, the claimant was an MP and a Committee Chair at the time the statements were published, and the Court found that the defendant’s Article 10 ECHR right of freedom of speech prevailed.
Citizen Journalists and Public Interest Defence
While the defense under section 4 is well-known and frequently utilized in the world of journalism, it can also be relied upon by individuals who can demonstrate that they hold the role of a “source” or “contributor” to the statement. In Economou v De Freitas [2018] EWCA Civ 2591 and, more recently, in Packham v Wightman [2023] EWHC 1256 (KB), the Court examined the concept of the defendant being a “citizen journalist”.
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Citizen journalists should be wary that changing circumstances may strip a public interest defense away from under their feet, as occurred in Banks v Cadwalladr [2022] EWCA Civ 219. The courts are also cautious of automatically conferring the mantle of being a citizen journalist on a self-publisher, as seen in Aaronson v Stones [2023] EWHC 2399. In this case, the defendant’s role was characterized as a quasi-reporter, and the Judge found that the public interest defense was not made out due to a lack of journalistic standards and failure to verify claims.
Returning to the hypothetical restaurant manager and their complaining customer, it is clear that the customer’s publication may be considered a matter of public interest if it warns of a risk to public health. However, the reasonableness of the belief that there was a threat to public health would depend on the circumstances, and the court would need to consider all the circumstances of the case, including whether the customer’s publication was made in good faith and whether it was reasonable to believe that the statement was in the public interest.