For the second time in the space of less than two years we have seen a high profile libel claim in the courts of England and Wales defended successfully on the basis that the allegation that was published was substantially true.  Of course, the first was the Sun defending successfully its assertion that Johnny Depp was a “wife beater”, and now we have judgment in the case of Rebekah Vardy v Coleen Rooney.

As has been well covered in our law column, and elsewhere, Ms Vardy sued Ms Rooney for libel following Ms Rooney’s online revelation that Ms Vardy’s Instagram account had been leaking stories about her to The Sun newspaper. Ms Rooney had come to the conclusion as to the source of the leaks as a result of her amateur detective work in publishing fake posts about herself, restricting them so that only Ms Vardy would see them, then waiting to see if they appeared in newspaper stories. Ms Vardy has consistently denied the allegation.

Following the trial of the case back in May, Mrs. Justice Steyn delivered her judgment last week, and she found in Ms Rooney’s favour, deciding that the “substantial truth” defence under section of the Defamation Act 2013 had been successful.

There was no argument in this case that the basic elements of a claim for libel had been made out (i.e. that the post was defamatory of Ms Vardy at common law; that it had caused or was likely to cause serious harm to her reputation; that it identified her; and that it had been published to a third party), but the argument was over whether Ms Rooney had a valid defence.

The single meaning that had been given to Ms Rooney’s publication by Mr Justice Warby earlier in the proceedings was:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

Ms Rooney’s first line of defence was that the statement was substantially true, and Mrs. Justice Steyn agreed.  In order to employ the truth defence successfully, the defendant does not need to show that every detail of the allegation is true, but that the “sting” of the libel is substantially true.

Mrs. Justice Steyn found that Ms Vardy leaked a number of posts from Ms Rooney’s private Instagram account, using her assistant Ms Watt, as a conduit. It was also held that Ms Vardy knew of, and condoned, the leaks, as well as actively engaging in them. The fact that some of the posts had been fabricated by Ms Rooney in order to see if they reached the newspaper did not detract from the fact that Ms Rooney had shown that the sting of the libel was substantially true.

In terms of her review of the evidence, Mrs. Justice Steyn ruled that Ms Vardy deliberately deleted some of her Whatsapp conversations with Ms Watt, and that Ms Watt deliberately dropped her phone into the sea in order to conceal evidence. The Judge also decided that Ms Vardy’s evidence was not credible in large parts and should be treated with “very considerable caution”, going on to say that:

“There were many occasions when her evidence was manifestly inconsistent with the contemporaneous documentary evidence (e.g. in relation to the World Cup 2018 and the photoshopped pictures), and others where she was evasive (e.g. in relation to the Car Crash Post and Mr X)….Ms Vardy was generally unwilling to make factual concessions, however implausible her evidence. This inevitably affects my overall view of her credibility, although I have borne in mind that untruthful evidence may be given to mask guilt or to fortify innocence.”

The judge also described the absence of Ms Watt as a witness as “striking”, and went on to say that she found Ms Rooney to be “an honest and reliable witness” and that her evidence was “consistent with the contemporaneous evidence”.

Ms Rooney’s second line of defence was the statutory defence of “Publication on a matter of Public Interest” under section 4 of the Defamation Act 2013.  In order to succeed here, Ms Rooney needed to show that the statement was on a matter of public interest, and that she reasonably believed that publishing the statement was in the public interest.  In assessing the second of those tests, the Judge must take into account all of the circumstances of the case.

Whilst Mrs Justice Steyn found that the first test was satisfied (the undesirable practice of information about celebrities’ private lives being provided to the press for publication by trusted individuals was a matter of public interest), she decided the second test was not.  It is true that Ms Rooney believed it was in the public interest to publish the outcome of her sleuthing, but her belief was not reasonable once all of the circumstances of the case had been taken into account.  The defence failed here because Ms Rooney had not given Ms Vardy the chance to comment on the allegation prior to publishing.  It didn’t matter that Ms Rooney expected Ms Vardy to deny it; the fatal flaw was that she had not even been given the opportunity to consider it.

Whilst the failure of the public interest defence in this case is of little consequence due to the success of the truth defence, it serves as a timely reminder of the importance of seeking comment prior to publication in order to have a chance of relying on the statutory public interest defence.

So, why don’t we see more cases defended on the basis of “substantial truth”?

It is safe to say that most media lawyers are wary of advising that an allegation is published relying purely on the truth defence, or of defending a claim purely on that basis.  It is a risky defence to employ as its success largely comes down to how witnesses perform at trial under cross-examination (as it did in this case), as well as the evidence.

Given the cost of libel proceedings, and the adverse costs consequences of losing a claim (being responsible for most of the legal costs of both sides), it is a strategy that cannot (or at least should not) realistically be employed without the financial means to cover the costs risk.

The legal costs in the Vardy – Rooney  case are reportedly in the millions of pounds on each side.  Such financial risk is certainly enough to make publishers think twice (or more!) before defending a libel claim by relying on the truth defence.

As ever in libel law, what appears to be a straightforward concept (“it’s true”) turns out to be a little tricky.  This is why journalists need to understand the risks when writing about a contentious topic which they believe to be true.

But to end on a positive note, thorough research, lots of supporting documents, and no short-cuts, invariably make the truth defence one of the more effective ways of fending off a complaint.