Bruno Lachaux is someone that none of us is ever likely to meet, but as someone who has had an enormous influence on UK libel law in the last few years, he’s not a person any journalist or media lawyer is likely to forget.
Some seven years ago, The Independent, i, and the Evening Standard, published articles which alleged (falsely, we now know) that he had been violent, abusive, and controlling towards his ex-wife; that he had callously and without justification taken their son away from her; and that he had falsely accused his ex-wife of abducting their son.
Mr. Lachaux sued the publishers for libel. One of their initial arguments was that he had not met the fundamental test of proving that the articles had caused serious harm to his reputation, or had created a risk of such harm occurring. Under section 1. of the Defamation Act 2013, the absence of serious harm means the offending words cannot be defamatory, even if the traditional common law test has been met.
Not surprisingly, this crucial issue was hotly contested, and was eventually determined by the Supreme Court in 2019, in his favour. Naturally, this judgment received widespread attention at the time, and it remains the starting point for consideration whenever an allegation of libel is made.
Every working journalist needs to be aware of what the Justices said when it comes to ascertaining serious harm.
The Supreme Court’s decision left the way open for Mr. Lachaux to continue his claim. The defendants’ principal defence was that the articles were protected by the public interest defence, contained in section 4. of the 2013 Act.
The trial took place at the end of February, and last week, Mr. Justice Nicklin delivered his decision. In a lengthy judgment, he ruled in favour of Mr. Lachaux, held that the public interest defence was not available, and awarded him a total of £120,000 in damages.
There are many matters in the judgment that are worth mentioning, but for present purposes, two issues are worth highlighting.
First, to be able to rely on the public interest defence, the newspapers should have verified the allegations in relation to Mr. Lachaux in light of their gravity. The judge was particularly critical of the failure by anyone to contact him for comment, and to include his response in the articles.
Mr Justice Nicklin had this to say on the matter:
“I have no hesitation in finding that it was not in the public interest to publish [the articles] which contained allegations that were seriously defamatory of the Claimant, without having given him an opportunity to respond to them. The decision not to contact the Claimant was not a result of any careful editorial consideration, it was a mistake”.
Second, because the burden of establishing the public interest defence lies with the publisher, the judge had this to say about journalistic practices:
“ …journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed the publication would be in the public interest, but also how and with whom this was established at the time…”
In other words, in accordance with the Codes issued by IPSO and IMPRESS, a paper/electronic trail needs to be available for inspection, so that the decisions which led to publication can be understood and analysed.
In one sense, this should not create any issues for journalists. After all, this is what you are trained to do. The reporter’s notebook has always been a crucial record of who said what to whom, and when.
In practice, however, experience shows that this is something that journalists find difficult to do. My personal bugbear is that more often than should be the case, notes are not dated, so creating an accurate chronology of what happened prior to publication is often more tricky than it should be.
In summary, therefore, the message from Mr. Justice Nicklin is clear (and not particularly controversial): if you want to rely on the public interest as a defence to a libel claim, reporters have to make sure the background has been thoroughly researched; they have to contact the subject of the story for his/her side of the story; and all this work has to be meticulously recorded.
We have been warned!