In a rare turn of events, the Court of Appeal has completely overturned the decision of a trial judge in a defamation case, and delivered a withering review of the Defendant’s approach towards their construction of the defence of public interest to boot.
At the outset, the case was brought by a Polish national, Mr Serafin who had moved to the UK in the 1980’s and settled here, becoming heavily involved in the Polish community based in London. The defendants are also Polish nationals, a married couple called Mr & Mrs Malkiewicz who are the publishers of a very popular not-for-profit Polish language newspaper, Nowy Czas which has a circulation of approximately 5,000.
The Defendants had published an article in Nowy Czas which they described as a “modern morality tale” containing very serious allegations about the actions of the Claimant relating to his charitable work for various Polish organisations and related financial transactions.
At first instance the trial judge, Mr Justice Jay, found that the Defendants in the case had successfully made out their combined public interest and truth defence pursuant to sections 4 and 2 of the Defamation Act 2013 respectively.
However, on appeal it was held that Jay J had been wrong to find that these defences had been established and moreover, and rarer still, the Court of Appeal were damning in their assessment of the behaviour of Jay J towards the Claimant at trial, describing him as having “cast off the mantle of impartiality”.
Under the public interest defence (s.4(1)(a) of the Act), the first point of consideration has to be whether the statement complained of was, or formed part of, a matter of public interest. The Court of Appeal determined that Jay J had erred in his exercise of the balancing test between Articles 8 and 10 of the European Convention – the right to privacy and the right to freedom of expression respectively.
In this case, because the article in question was targeted specifically at the personal life and affairs of the Claimant rather than about the how the organisations he was involved with were run in any broader sense, it could not be held that the matters set out were in the public interest.
Since the Court of Appeal determined that the subject matter was not in the public interest, the defence was then bound to fail. However, for completeness they also addressed the second part of the test pursuant to s.4(1)(b) of the Act, which concerns whether or not the Defendants reasonably believed that the publication was in the public interest.
In considering this point, the Court of Appeal judges referred to the “Reynolds” test, namely the 10 points to be considered when considering a defence of this nature and it was found that the Defendants had failed to conduct themselves in accordance with proper journalistic standards. Illustrative examples highlighted by the judges included matters such as a failure to contact the Claimant for comment, a general rush to publication given the lack of urgency around the subject matter, and the “snide and disparaging” tone of the article.
In light of the failure of the Defendants to satisfy the requisite, tests it followed that Jay J’s decision on the public interest defence had to be reversed.
This is an interesting, though not precedent setting, case for myriad reasons. Primarily, it should serve as a useful reminder of the absolute importance of considering “all relevant factors” when determining whether or not to rely upon the defence of public interest.
As we all know, when writing public interest pieces the question of whether your actions in putting the article together would withstand the scrutiny of cross-examination in the context of ” the public interest” must be at the forefront of your mind. Ultimately, as we see in this case, failure to afford this point proper consideration can lead to very costly consequences.