It is not very often that we see libel cases where the defendant successfully pleads a truth defence, but in recent years we’ve been treated to several – Depp v Heard, Vardy v Rooney, and now the case of Hay v Cresswell.  Whilst this case doesn’t revolve around the rich and famous, it is equally as important in terms of libel law.

The latest case was brought by Mr Hay after Ms Cresswell accused him of a violent sexual assault on an internet blog, as well as in communications to Mr Hay’s girlfriend and business partner.  Ms Cresswell published the posts in June and July 2020 and the alleged sexual assault occurred in May 2010.

It was alleged by Ms Cresswell that after a night out with mutual friends in May 2010 Mr hay left a nightclub in Sunderland with her, and once she had rejected his advances he went on the carry out a violent sexual assault.

Within hours of the alleged assault taking place Ms Cresswell contacted the police to report it, but the police did not carry out a thorough investigation and instead decided within a matter of hours that Ms Cresswell’s report would not be treated as a crime.

Shortly after the incident Ms Cresswell messaged several friends about what had happened, as well as her Mother, but did not take the allegation further as a result of the lack of police action.

Over time Ms Cresswell was still upset by the ordeal and said in evidence that she made the publications to protect other women as Mr Hay had access to and power over many women’s bodies as a tattoo artist, as well as being inspired by the start of the “Tattoo Me Too” movement.

Ms Cresswell initially contacted Ms Hay’s business partner and girlfriend to make her aware of the incident and to prompt her to take appropriate action, but when she was ignored and blocked on several social media platforms Ms Cresswell decided to publish the public blog post.

The meaning attributed to the words which Ms Cresswell published was that Mr Hay was responsible for a violent sexual assault against her. In her defence Ms Creswell relied firstly on the truth defence under S.2 of the Defamation Act 2013, and secondly on the public interest defence under S.4 of the same Act.

After a detailed consideration of evidence from both the claimant and the defendant, as well as some of their friends the Judge, Mrs Justice Williams, ruled that the defendant had proven (to the civil standard of proof, which is that it is “more likely than not”) that Mr Hay had carried out a violent sexual assault on Ms Cresswell, and therefore the truth defence was successful.

In coming to this conclusion Mrs Justice Williams found that whilst there were minor inconsistencies or exaggerations in Ms Cresswell’s evidence, these were understandable given that she was in shock, tired and under the influence of alcohol when she made the first report of the incident to the police, as well as the fact that it was a traumatic event and the significant passage of time since the assault took place in 2010.

In contrast, Mrs Justice Williams was not persuaded by Mr Hay’s evidence. In particular Mrs Justice Williams noted Mr Hay’s initial statement that he only danced with Ms Cresswell inside the nightclub and chatted in groups of people, but that his recollection later altered to include going outside with Ms Cresswell and attempting to kiss her, with her pulling away from him.

Given that the case had been defended successfully with the truth defence, Mrs Justice Williams was not duty bound to consider the applicability of the public interest defence, but did so with the agreement of the parties.

The Judge found that the matters published by Ms Creswell were objectively on matters of public interest, namely:

1. The prevalence of sexual abused committed in the tattoo industry, which at the time was a matter of significant public concern;
2. The need to protect women from sexual abuse; and
3. The failure to prosecute sexual abuse cases.

Mrs Justice Williams then turned to whether Ms Cresswell reasonably believed that publishing the statements was in the public interest. In considering this question, the Judge looked at the steps Ms Cresswell had taken prior to publishing the allegations:

1. She reported the sexual assault to the police shortly after it happened;
2. The police spoke to her while she was still under the influence of alcohol and wrongly decided within a matter of hours that no crime had been committed;
3. She took steps herself to establish that Mr Hay was the man with whom she left the nightclub, through contacting friends, as well as telling other friends about the incident;
4. Disheartened and disillusioned by the lack of police response she felt there was no point in trying to take matters further;
5. She did not speak publicly about the assault for 10 years, but continued to feel upset about it and increasingly felt guilty at the prospect of Mr Hay assaulting others;
6. In 2020 she became aware of the “Tattoo Me Too” movement and the issue and prevalence of sexual assault within the tattooing industry; and
7. In 2019 and 2020 she made public allegations of abuse against an ex-boyfriend and as a result others came forward alleging abuse against the same man.

As a result of this, the Judge was satisfied that the defendant did believe that publishing the statements complained of was in the public interest. Mrs Justice Williams went on to find that Ms Cresswell’s belief was reasonable, based on all the available evidence and the sequence of events.

When publishing the allegations Ms Cresswell did not include any response from Mr Hay, nor did she mention that in 2010 Northumbria Police decided that the alleged assault did not constitute a crime. Did that undermine the public interest defence in this case? No, it didn’t.

Mrs Justice Williams reasoning was:

“Given the defendant was writing from her own knowledge of the sexual assault upon her, it would be unreasonable to expect her to seek out and include comment from the claimant (in particular in circumstances where she had tried to initiate investigations into his involvement both via the police and her associates back in 2010).

“Furthermore, given that she reasonably disagreed with and held legitimate concerns about the approach taken by the police in 2010, I do not consider that a failure to reference the officers’ earlier conclusion adversely impacts upon the reasonableness of her belief that publication was in the public interest”.

So, whilst the public interest defence was not required in this case given the success of the truth defence, the case shows that it is possible for a public interest defence to succeed without approaching the party concerned for comment.

However, this case needs to be accompanied with a cautionary note for publishers….

Whilst the truth defence has succeeded on this precise set of facts, running a truth defence is expensive in terms of legal costs and carries significant risk because it is only as strong as the evidence you can call on in order to prove the truth of a statement. Running a truth defence and being unsuccessful is also considered an aggravating factor which will result in a higher award of damages for the claimant.

In terms of the public interest defence, whilst Mrs Justice Williams makes some assertions which might be helpful to publishers, it must be remembered that it is the publisher’s reasonable belief that publication is in the public interest which is key.

In this case Ms Cresswell was the publisher, but if the publisher is a media organisation it is the Editor’s and journalist’s belief which will be key, and in those cases there will likely still be the expectation that the subject of the accusation is approached for comment, or that any relevant balance is added to an article.