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23.3.1 The Reynolds defence – case studies
The case of Reynolds v Times Newspapers Ltd ([2001] 2AC 127), referred to in chapter 23 of McNae’s, established at common law the public interest defence which was later replaced (and so abolished) by section 4 of the Defamation Act 2013. The following cases are examples of where the Reynolds defence was used by media organisations – both successfully and unsuccessfully – to defend against a libel action. There is also a study of the Economou case referred to in that chapter.
The Galloway Case
In 2004 the Daily Telegraph failed in its claim that its news coverage of documents found in the ruins of the Iraqi Foreign Ministry in Baghdad was ‘neutral reportage’. A judge ruled that the newspaper’s allegations which had been based on the documents - that left-wing MP George Galloway had received funds diverted from Iraq’s oil-for-food programme - conveyed a defamatory meaning that was not protected by Reynolds qualified privilege.
Mr Galloway won £150,000 damages for these false allegations. The newspaper’s costs in the defamation action were estimated at £1.2 million.
In court, the newspaper did not assert that the allegations were true, but claimed that Reynolds qualified privilege applied to the coverage, and also argued that some material it published was protected by the defence of fair comment. The newspaper said that the public had a right to know the contents of the documents, even if they were defamatory of Mr Galloway, and irrespective of whether the allegations were true.
But the judge said Reynolds privilege protected the neutral reporting of attributed allegations rather than their adoption by a newspaper as if they were fact. The Telegraph’s articles had not ‘fairly and disinterestedly’ reported the Baghdad documents, but went beyond, by assuming them to be true (George Galloway MP v Telegraph Group Ltd [2004] EWHC 2786 (QB)). See 22.3.1.2 in McNae’s for other detail of this case, considered in the context of the honest opinion defence which replaced fair comment.
Hunt v Times Newspapers Ltd
The case arose after investigative journalist Michael Gillard wrote an article published in The Sunday Times in May 2010 under the headline ‘Underworld Kings Cash in on Taxypayer Land Fund’ which included a photograph of the claimant, David Hunt. The article alleged that Mr Hunt was one of a number of gangland criminals who were potential beneficiaries of a £20m fund run by the London Development Authority (LDA) being used to acquire land for regeneration. It claimed he was a ‘crime lord’ who controlled a vast criminal network involved in murder, drug trafficking and fraud and that he had been responsible for a violent assault on the main witness against him in a 1999 prosecution, as well as the intimidation of that witness’s family. It also alleged that, in order to benefit from the sale of land to the LDA, he had attacked and threatened to kill a property developer at a court hearing during a dispute over ownership of the land, and avoided prosecution for his attacks and threats by intimidating witnesses.
The Sunday Times’ publisher, Times Newspapers defended the claim on the basis of justification (now ‘truth’) and also used the Reynolds defence in relation to some of the allegations. In a ruling in July 2013, Mr Justice Simon concluded that Mr Hunt was responsible for a violent assault on a victim who later withdrew his statement and had threatened the party to the property dispute and orchestrated an attack on him. The judge also found Mr Hunt had avoided prosecution through intimidation of a witness and that he was the head of an organised crime network who was implicated in extreme violence and fraud, but did not accept that involvement in murder and drug trafficking were necessarily included in a general description of such a person.
But, Mr Gillard’s use of the Reynolds defence succeeded, as the judge also concluded that it was a matter of public interest that criminals were being paid from public funds and that the land dispute which entitled them to receive such payments had led to a violent turf war and large-scale police corruption inquiry; that the status and involvement of Mr Hunt was central to the article; that Mr Gillard had behaved fairly and responsibly in his investigation and that, on the basis of evidence, it was reasonable to describe Mr Hunt in the way he did. The judge concluded Mr Gillard honestly believed the allegations were true and accurate and that it was his duty to write the article as he did (David Hunt v Times Newspapers Ltd ([2013] EWHC 1868 (QB)).
Flood v Times Newspapers Ltd
On 2 June 2006, The Times published an article with the headline ‘Detective accused of taking bribes from Russian exiles’ which named Gary Flood, a Detective Sergeant with the Metropolitan Police. An anonymous source had claimed that Russian oligarchs had paid a police officer for information about extradition requests and had stated that the police officer ‘could be’ DS Flood and that he had reported this to the police. The journalists involved with the story concluded in April 2006 that the police may not be properly investigating the allegations and approached DS Flood and others involved, which prompted an investigation. DS Flood sued for libel following the publication of the article, arguing it had wrongly alleged there were grounds to believe or suspect he had abused his position by accepting bribes from suspected Russian criminals in return for passing on confidential intelligence about attempts to extradite them to Russia to face charges. In September 2007, the Met concluded its investigation and found there was no evidence to support the allegations, but The Times article remained online without any reference to the police investigation’s conclusion. The Times sought to rely on the Reynolds public interest defence, arguing that DS Flood had been subject to an internal investigation and there were grounds which justified that investigation.
In a High Court ruling on this preliminary issue in 2007, Mr Justice Tugendhat concluded that The Times was entitled to rely on the public interest defence for the period up to the conclusion of the Met investigation, but not afterwards – the first time the Reynolds defence had been successfully used by a media organisation to defend a libel claim (Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB)). The Court of Appeal overturned the judge’s decision on the first time period, but the Supreme Court unanimously allowed an appeal by Times Newspapers Ltd and restored his ruling in 2012 (Flood v Times Newspapers Ltd [2012] UKSC 11)).
All five Supreme Court justices gave separate judgments. In his judgment, Lord Phillips identified three key issues in the appeal:
- how to approach the question of the meaning of the article
- whether it was in the public interest to refer to the details of allegations made to the police
- what level of verification (steps taken to verify the allegations) was required to meet the test of ‘responsible journalism’
The judge held that the seriousness of the published allegation is an important factor when assessing where the balance is to be struck between the public interest and the potential harm caused should an individual be defamed. In this case it was agreed between the parties that the meanings which they each put forward were so close that it was not necessary for the court to choose between them for the purposes of the preliminary issue being determined. However, Lord Phillips said that, where a publication is capable of bearing a range of meanings, a journalist must have regard to that range when deciding whether to publish and when attempting to verify allegations.
On the second issue, the court rejected DS Flood’s contention that, although the general subject matter of the article was a matter of public interest, the details of the allegations being investigated were not. The judges held that the story was of high public importance and the allegations were central to the story and published with the legitimate aim of ensuring they were properly investigated by the Met in circumstances where the journalists involved had reason to suspect this was not the case. Lord Phillips also concluded that it would not have been possible for the story to be published without naming DS Flood and that identifying him ‘did not conflict with the test of responsible journalism or with the public interest’. On the same issue, Lord Brown said:
‘not every anonymous denunciation to the police will attract Reynolds privilege. Far from it. That, as Mr Price QC for Sergeant Flood was at pains to point out, would indeed be a “charter for malice”. But where, as here, the denunciation is of a public officer, relates to a matter of obvious public importance and interest, and may justifiably appear to the journalists to be supported by a strong circumstantial case, it seems to me properly open to the trial judge to find the defence made out’
In relation to the third issue, the court observed that it was reasonable for the journalists to conclude from the police investigation that the accusation against DS Flood might be well-founded - there was a strong circumstantial case against him. Lord Mance said Mr Justice Tugendhat had been justified in finding that the article was covered by the public interest defence as established in Reynolds. He said:
‘The starting point is that the investigation into possible police corruption in the area of extradition of a Russian oligarch to Russia informed the public on a matter of great public interest and sensitivity. TNL journalists were motivated by a concern to ensure that the investigation was being or would be properly pursued. They had themselves investigated the sources and nature of the allegations exhaustively over a substantial period as far as they could. The article would have been unlikely to be publishable at all without details of the names and transactions involved in the alleged corruption. The facts regarding such transactions were accurately stated.’
While the published allegation was damaging to DS Flood’s reputation, the article did not assert the truth of the allegations, gave DS Flood the opportunity of commenting and the editorial judgment of the editors was worth of respect. Lord Mance concluded that there was ‘no good reason to depart from’ Mr Justice Tugendhat’s conclusion that the publication was in the public interest, despite the harm caused to DS Flood’s reputation. Following the determination of the preliminary issue, DS Flood was awarded £60,000 damages in 2013.
The Economou case
This defamation case arose after Alexander Economou, a shipping magnate’s son, was accused of rape by Eleanor de Freitas.
They had met at a party in 2008 or 2009, and in 2012 met again, and spent an evening and night together. She complained to police 11 days later that he had raped her. He has consistently denied this allegation, saying they had consensual sex. As a result of her claim, he was arrested but was never charged with rape. He subsequently launched a private prosecution against her for allegedly perverting the course of justice by making a false claim of rape. That prosecution against her was taken over – and continued – by the Crown Prosecution Service (CPS). Shortly before her trial was due to start, Ms de Freitas, aged 23, who suffered from bipolar disorder, died by suicide.
Seven publications followed which led to Mr Economou suing her father Mr David de Freitas for defamation. These were two articles in The Guardian quoting a press statement written by Mr de Freitas, a BBC Radio 4 Today interview of him, another interview he gave to the BBC TV News channel, coverage in The Daily Telegraph and The Guardian of a further press release issued in December 2014 on his behalf by his solicitors, and a Guardian article he wrote himself. In what was published Mr De Freitas said, for example, that his daughter was vulnerable young woman because of her bipolar disorder. He queried why the CPS had decided it would continue with the prosecution of her. Mr de Freitas wanted the inquest into his daughter’s death expanded to include an examination of the role of the CPS.
These publications did not name Mr Economou. But in his defamation claim against Mr De Freitas, Mr Economou said they had in effect identified him as the man she had accused of rape. Mr Economou’s case was that what Mr De Freitas said in these publications had accused him of falsely prosecuting Ms de Freitas for perverting the course of justice and had alleged that he had in fact raped her, when that was not true.
However, Mr Economou’s defamation claim was dismissed by Mr Justice Warby in the High Court. The judge, noting that the publications had not named Mr Economou, and having considered what their meanings were, ruled that some had not caused him ‘serious harm’ - for that aspect of law, see in 21.2.1 in McNae’s - and therefore the judge ruled that the claim for defamation could not succeed in respect of them. This meant, for the other publications, the central dispute related to whether the defendant Mr de Freitas, who argued he had the public interest defence, had satisfied that defence’s ‘reasonable belief’ requirement. As regards this defence, the truth or falsity of the allegation complained of – that is, whether the alleged rape occurred - was not one of the relevant circumstances, the judge said.
Mr Justice Warby said it was not in dispute – and he also ruled - that each of the publications complained was, or was part of, a publication on a matter or matters of public interest.
These were:
- Whether the CPS, a public authority, might have gone wrong in deciding to prosecute Ms de Freitas;
- Whether the CPS might have been mistaken in its assessment of the strength of the evidential basis for the prosecution and/or the public interest in prosecuting a rape complainant who was mentally unwell, and ended up killing herself;
- The extent to which the inquest process ought to accommodate an investigation of the public interest issues raised by the facts of the prosecution;
- The desirability of permitting private prosecutions for allegedly false complaints of rape or of sexual crime more generally.
Mr Justice Warby said the law required a belief that publication of ‘the statement’ was in the public interest. ‘In my judgment this must refer to the words complained of, rather than the defamatory imputation which those words convey,’ he said. The belief that publication was in the public interest would be reasonable ‘only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case’, he went on.‘Among the circumstances relevant to the question of what inquiries and checks are needed, the subject-matter needs consideration, as do the particular words used, the range of meanings the defendant ought reasonably to have considered they might convey, and the particular role of the defendant in question.’
He rejected Mr Economou’s argument that Mr de Freitas was in the role of a ‘citizen journalist’ and that judged on that basis his conduct fell far short of what the House of Lords had said in Reynolds about the journalistic approach required. The judgment in Reynolds set out factors a court should consider when deciding whether that defence applied, including what journalistic inquiries had been made to verify the information later published.
On Mr Economou’s behalf, it was argued in the High Court that Mr de Freitas had not met the journalistic standards set out in the Reynolds judgment as being necessary for such a public interest defence to prevail, because – for example - before the publications complained of, he had sought no comment from Mr Economou and failed to include even the gist of Mr Economou’s side of the story in those publications. But Mr Justice Warby said that Mr de Freitas was not acting as a journalist, or doing investigative journalism.
Mr Justice Warby went on: ‘It seems to me wrong in principle to require an individual who contributes material for inclusion or use in an article or broadcast in the media to undertake all the inquiries which would be expected of the journalist, if they are to rely on a defence of public interest.
‘The inquiries and checks that can reasonably be expected must be bespoke, depending on the precise role that the individual plays.
‘It is hard to see how an individual could rely on the public interest defence to escape liability for a false factual statement about events within their own knowledge .... But I see no reason why the defence should not avail an individual source or contributor who passes to a journalist for publication information the truth or falsity of which is not within the knowledge of the contributor.
‘The contributor may well be entitled to rely on the journalist to carry out at least some of the necessary investigation and to incorporate such additional material as is required, in order to ensure appropriate protection for the reputation of others.’
It was reasonable, the judge said, for Mr de Freitas to leave it to the media to conduct further investigations or to seek out and publish Mr Economou's side of the story, if that was required.
Bearing in mind the need for courts to take a strict approach to interference with political speech, Mr de Freitas’s belief - that what was published in the relevant publications was in the public interest - was ‘reasonable’, the judge said (Alexander Economou v David de Freitas ([2016] EWHC 1853 (QB)).
Mr Economou appealed, arguing that the public interest defence should fail because Mr de Freitas’ conduct fell far below the standard of journalistic responsibility required by the Reynolds judgment
The Court of Appeal rejected the appeal. There were, the court said, three questions to be answered when considering the public interest defence in section 4 of the Defamation Act 2013:
- Did the publication form part of a statement on a matter of public interest?
- Did the publisher believe that publishing it was in the public interest?
- Was that belief reasonable?
The appeal concerned only the third question – whether Mr de Freitas had held such a reasonable belief - and raised issues considered by the High Court about the extent to which ‘citizen journalists’ were to be held to the same standard of responsible conduct required of professional journalists if they were to be able to use the section 4 defence.
While section 4(1) required that the publisher should believe that publication was in the public interest, the Reynolds defence had focused on the responsibility of the publisher's conduct, the Court of Appeal said.
But the rationale for the two defences was not materially different – the principles underpinning the Reynolds defence, which sought to hold a fair balance between freedom of expression on matters of public interest and the reputations of individuals, were relevant when interpreting the public interest defence in section 4, it added. In this case, the public interest considerations in play were particularly strong as Mr Justice Warby had said.
The Court of Appeal added that Mr Justice Warby had been correct in interpreting the phrase ‘the statement complained of’ in section 4(2) as meaning the words themselves rather than the defamatory imputation they conveyed, and in considering that Mr de Freitas’ intended meaning, rather than simply the imputed defamatory meaning, was relevant to assessing the reasonableness of his belief.
The Court of Appeal also ruled that it was reasonable for Mr de Freitas to have left it to the media to conduct further investigations or seek out publish Mr Economou's side of the story, if that was required.
Although the factors crucial to a Reynolds defence might be relevant, a defendant's failure to comply with one or more of them might not necessarily tell against him; the weight to be given to each factor would vary from case to case, and – as Mr Justice Warby had recognised in the High Court - section 4 of the 2013 Act required that all the circumstances of the case should be taken into consideration, the Court of Appeal said (Alexander Economou v David de Freitas [2018] EWCA Civ 2591),
Update on public interest defence (section 4 of the Defamation Act 2013) – Banks v Cadwalladr
The above cases deal with the application by the courts of the common law Reynolds defence, which was replaced and therefore abolished by section 4 of the Defamation Act 2013. In the case of Banks v Cadwalladr the section 4 defence was successfully used by freelance journalist Carole Cadwalladr in a libel action brought against her personally by businessman and prominent Brexit supporter Arron Banks, who donated several million pounds to campaigns promoting the ‘Leave’ vote – predominantly Leave.EU. Mr Banks sued for libel over remarks made during a TED talk given by Ms Cadwalladr in April 2019 and a subsequent Twitter post in June 2019.
Ms Cadwalladr had been investigating potential foreign interference in the 2016 EU Referendum and the sources of funding for the ‘Leave’ campaign, the results of which had been largely published in The Observer. During her TED talk, she uttered the remarks complained of, which were: ‘And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government.’ After Mr Banks issued libel proceedings, Ms Cadwalladr then tweeted a link to the TED talk and wrote: ‘Oh Arron. This is too tragic. Nigel Farage’s secret funder Arron Banks has sent me a pre-action letter this morning: he’s suing me over this TED talk. If you haven’t watched it, please do. I say he lied about his contact with the Russian govt. Because he did.’
Ms Cadwalladr initially sought to rely on a defence of truth, but was left with only the public interest defence available after a High Court judge concluded during the first stage of the case that the meaning of her remarks (in both the talk and the tweet) was that: ‘On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.’ Ms Cadwalladr accepted she had not intended such a meaning, stating in a letter of apology to Mr Banks in March 2021: ‘It was not my intention to make any such allegation and I accept that such an allegation would be untrue.’
Therefore, at trial, the issues for the judge on the public interest defence were whether Ms Cadwalladr could show that she believed that publishing the statement complained of was in the public interest and, if so, whether she could show that her belief was reasonable. Having concluded that the case passed the ‘serious harm’ threshold in relation to the TED talk, but not the subsequent tweet, Mrs Justice Steyn went on to find in Ms Cadwalladr’s favour on the first public interest issue, saying:
‘I have no doubt that Ms Cadwalladr honestly, indeed fervently, believed when she gave the TED Talk and continues to believe that publication was not only in the public interest, but that it is a matter (as she put it) “of the absolute highest interest” to highlight the vulnerability of our democracy. That this was and is her belief was manifest throughout her written and oral evidence, and is conveyed clearly in the contemporaneous documents. Ms Cadwalladr has succeeded in showing that she believed that publishing the words complained of was in the public interest, and that has continued to be her belief at all times since she gave the TED Talk.’
The judge then analysed the evidence in the case, including Ms Cadwalladr’s various drafts of her TED talk, and concluded that Ms Cadwalladr had established that her belief that publishing the allegation was in the public interest was ‘reasonable’. She ruled that the defence did not apply after 29 April 2020, when the Electoral Commission issued a joint statement with Mr Banks stating that it accepted the National Crime Agency’s (NCA’s) conclusions that it found no evidence that any criminal offences have been committed by Mr Banks and that the NCA had not received any evidence to suggest Mr Banks or his companies received funding from any third party to fund the loans, or that he acted as an agent on behalf of a third party. However, the judge found that continued publication after that date did not pass the ‘serious harm’ threshold. The judge also concluded that Mr Banks attempt to seek vindication through the legal action was legitimate and that it was ‘neither fair nor apt’ to describe it as a ‘Strategic Litigation Against Public Participation (SLAPP)’ suit, as Ms Cadwalladr had done (see Late News for more information on SLAPPs). Mr Banks has said that he plans to appeal against the ruling (Banks v Cadwalladr [2022] EWHC 1417 (QB)).