A recent decision from the High Court, in the case of Aaronson v Stones, has provided a useful analysis of the defences available when a publisher is sued for libel, despite the unusual facts on which the claim was based.

The claimant, Jack Aaronson, told the Court that he has worked in the gay pornography industry for a number of years as a performer/model and, for the last five years or so, as an entrepreneur in that sector.  Apparently, he is very well known in the business, both under his real name and an industry name.

The defendant, Marcus Stones, worked in the adult entertainment industry for a number of years, but is now a student.  He published several tweets and featured in a YouTube video, which alleged that the claimant was a serial rapist.  (Mr. Stones was not the alleged victim of the alleged sexual offences, which is why he can be identified).

Some of the evidence mentioned in the judgment of Mr. Justice Knowles is quite graphic, but its real value for this article is that the judge summarised and reiterated a number of legal principles which are of interest to journalists and media lawyers alike.

Mr Stones defended the claim on the basis that the allegations he had made were true, alternatively, that his Tweets and video were publications on a matter of public interest.

After a four day trial, in a judgment running to 138 pages, Knowles J. rejected those defences and awarded Mr Aaronson £110,000 in damages, plus legal costs.

So what does this outcome tell us?

This was not a case which resulted in a revelation of a new principle of law.  But it does summarise, in one place, several principles of law which apply to journalism on a daily basis.

Serious Harm

In relation to whether the publications passed the ‘serious harm’ test, the Court noted that “each publication must satisfy the serious harm test” and “it is not possible to aggregate or cumulate injury to reputation over a number of statements or publications in order to pass the serious harm threshold” – a point very much worth noting.

The Judge also found that the seriousness of the allegations made it a rare case where serious harm could be inferred.  Factors which impacted this conclusion were that the Claimant is a key figure in the UK adult entertainment industry; many of the Defendant’s online followers are based in the UK; and evidence was produced of the allegations circulating and being believed within England and Wales.

Interestingly, the Judge gave consideration to the impact of the publications on the Claimant

both emotionally and physically, but their significance was limited due to the absence of expert medical evidence.  As the outcome suggests, the lack of expert medical evidence wasn’t crucial in Mr. Aaronson’s case, but it will be in more borderline cases.

The Truth defence

Turning to the ‘substantial truth’ defence under S.2 of the Defamation Act 2013, in order to be successful, a Defendant needs to prove, on the balance of probabilities, that the meaning given to the statements was substantially true.  As we have noted on many previous occasions, this is not an easy feat.

Minor inaccuracies will not deprive a Defendant of the defence, but the imputation carried by each publication needs to be proven to be substantially true.

In this case, the Judge found that the defence failed.  He carried out an in-depth analysis of evidence relating to each of the different allegations, including hearing evidence from an alleged victim, and viewing relevant video footage of sexual encounters.

However, the evidence was not enough to substantiate the allegations, and the defence failed.

Public Interest defence

The Defendant’s alternative line of defence was the statutory ‘Publication on a Matter of Public Interest’ defence under S.4 of the 2013 Act.

The question considered by the Court was whether, objectively, the statements were published, on a matter of public interest.  Bearing in mind the guidance laid out in previous cases, Mr Justice Knowles found that none of the statements in question satisfied this test.

Whilst there is an argument that enabling other victims of rape to come forward is a matter of public interest, the Judge found that in these instances, there was no public interest in the disclosure of private information.  Whilst the Claimant was well known in his industry, he was not a public figure.

Mr Justice Knowles noted that:

“Discussion of rape and sexual abuse (or abuse in general) in any industry will likely be a matter of public interest.  Making public accusations of rape against a named individual is not (or not necessarily) in the public interest”.

The Defendant argued that the central subject of the Tweets and YouTube publication was “exploitation and abuse in the adult entertainment industry”, but the Judge found that any “industry connection” was missing from all but two of the publications, and that some publications “combined personal abuse of the Claimant with accusations of rape”.  Where the industry connection was present, it was only “peripheral or tangential”.

Crucially, the rape allegations “did not….form part of an informed discussion by the Defendant of a generally recognised problem within the adult industry of which the Claimant’s alleged conduct was just an example”.

This is an important warning not only for journalists but also for media lawyers: when looking to rely on the Public Interest defence, considerable thought needs to be given to the ‘objective’ public interest question and to the detail of the publication, at the pre-publication stage.

In order to rely on the defence, more than a quick look at the general subject matter is required from the outset.

Damages – general and aggravated

The award of £110,000 in damages, including general damages and aggravated damages, is substantial, and reflects both the seriousness of the allegations and the number of defamatory statements made over a period of time.  The judge noted that the Claimant had suffered “a campaign of defamation of an extremely serious type” which impacted his reputation, business and mental wellbeing.

The award of aggravated damages, in addition to general damages, is not common.  In this case, the Judge did so because of:

1. the “concerted campaign to ruin the Claimant’s reputation” and efforts to encourage others to disseminate the statements more widely;
2. the fact that the Defendant was motivated “by a desire to avenge himself upon the Claimant following a dispute”;
3. the Defendant published a further allegation after the Claimant’s solicitors had sent a Letter of Claim;
4. the Defendant has never made a withdrawal of the allegations or apologised for them; and
5. the fact that the “Defendant accompanied his false allegations of rape with false allegations of blackmail and bribery which he was totally unable to substantiate”.

Whilst these aggravating factors seem extreme and are unlikely to be raised (or at least substantiated) against responsible mainstream publishers, it is important to remember that the behaviour of a (potential) Defendant after a complaint has been raised, can also impact the financial consequences of any future litigation.

One well known example concerns the way a Defendant defends litigation.  Running a truth defence which has no prospect of success may well result in aggravated damages being awarded to the successful Claimant.  It’s happened before.

Conclusions

So, what does all this mean for English, Welsh, and Northern Irish mainstream publications?

Well, it turns out that a case based on unusual facts (few of which would ever see the light day in day in those publications) and on personal animosity, is actually of great value to publishers and journalists across the board.  The judgment serves as a reminder of the hurdles that have to be overcome when relying on the truth and public interest defences.

Once again, we have been warned!