The big media law event of last week was the appeal hearing before the Supreme Court in the Lachaux saga. This is hugely important case, because the Justices will determine once and for all what exactly is meant by “serious harm” to a person’s reputation.
Given the importance of that case, it’s hardly surprising that a rather interesting judgment handed down by Mr Justice Warby was overshadowed. But the decision in Doyle v. Smith is important because it provides a useful reminder of the key points relating to the ‘public interest defence’ contained in section 4 of the Defamation Act 2013.
The case concerned a claim for libel brought by a Mr Doyle, a property developer, against a Mr Smith, the sole operator of an online community newsletter – a so called citizen journalist.
Mr Doyle had formulated a proposal that would facilitate a move of the local rugby club to new premises with a view to him obtaining planning permission to redevelop the existing site.
The detail of this proposal was circulated to the club’s members at a private meeting, in the form of an information notice which contained a number of inaccuracies. Smith obtained a copy of this notice and subsequently published a number of articles, two of which made defamatory statements about Doyle.
Doyle duly sued, and in response to the claim (and after changing his mind a few times), Smith set out his stall by relying on the public interest defence.
Now, as we all know, this is a difficult defence to prove at the best of times and this case provides no evidence to the contrary!
Section 4 of the Defamation Act 2013 sets out the twin requirements of the public interest defence.
Firstly, the statement complained of must be, or form part of, a statement on a matter of public interest. As has been said many times, there is a significant difference between something that is in the public interest as opposed to something that is merely interesting to the public.
In this case, Warby J. found that because the articles related to a proposal that could have significant ramifications upon the community, the content of the articles complained of satisfied the first requirement of the defence.
Where things started to go wrong for Smith was in Warby J’s consideration of his “reasonable belief” that publishing the statement was in the public interest – the second of the twin requirements.
Here, Warby J. found that there was “unequivocal” evidence proving that Mr Smith was aware that he knew the content of the articles to be false, and therefore, he did not, and indeed could not, have had the requisite reasonable belief.
Under questioning, Smith claimed that he had not believed Doyle’s denials, which is why he maintained that he did indeed have a reasonable belief that publication was in the public interest.
In his judgment Warby J. acknowledged that he could see that “a public interest defence might not fail just because the statement complained of contained some insignificant mis-statements that the defendant did not reasonably believe”.
However, he went on to say that despite “making all due allowance for editorial discretion, no journalist could reasonably believe that deliberate fakery of this kind was in the public interest”.
In his damning rejection of Smith’s defence, Warby J. characterised him as “a careless journalist who acted with a closed mind and in some respects irrationally”.
Though it’s inconceivable that any regular readers of this column could ever be described in these terms, it is worth noting, once again, that the statutory public interest defence sets a high bar for all those looking to rely upon it.
In short, the Judge’s warning is well worth taking to heart – carelessness, a closed mind, and irrationality are all fatal to any attempt to argue that a contentious article is protected by the public interest defence.
We have been warned!