HomeInsightsCourt of Appeal rules on defence of malice in defamation proceedings and upholds judge’s findings

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Tony Greenstein issued defamation proceedings against the Campaign Against Antisemitism (CAA) in relation to its publication of five articles on its website at “antisemitism.uk” in 2017 and 2018.

The first article was headed “Tony Greenstein’s attempt to shut down Campaign against Antisemitism showcases the similarities between far-left and far-right”. It was published in response to a public petition by Mr Greenstein demanding that the Charity Commission remove CAA’s charitable status. It made a series of points against Mr Greenstein and referred to previous convictions of Mr Greenstein. The convictions were spent, pursuant to the provisions of the Rehabilitation of Offenders Act 1974, and were included in a paragraph which started, “Mr Greenstein is not above lying”. The paragraph went on to refer to two statements by Mr Greenstein that were said to be lies. The article continued:

“In this context, then, it is entirely relevant to mention that Mr Greenstein has criminal form for brazen deception, having past convictions for credit card theft and subsequent use, vandalism, drug possession and a number of other petty crimes.”

CAA argued that these allegations of fact were true because Mr Greenstein, when he was about 30 years old, had pleaded guilty at Brighton Magistrates’ Court to stealing a credit card and using it to obtain toys worth £46. Seven other offences of dishonestly obtaining goods to the value of £200 were also considered. Mr Greenstein had also pleaded guilty to damaging a photocopier and possession of cannabis. He had pleaded guilty to another offence of possession of cannabis a year later.

Mr Greenstein argued that the CAA was not entitled to rely on the defence of truth because the convictions were spent. He also said that the CAA had published information about the spent convictions maliciously.

Sections 8(3) to (5) of the 1974 Act provide that nothing in section 4(1) (which relates to the effect of rehabilitation when convictions have become spent) shall prevent a defendant from relying on a defence of truth unless “the publication is proved to have been made with malice”.

CAA applied to strike out Mr Greenstein’s plea of malice. At first instance, the judge granted the application. Mr Greenstein appealed.

Mr Greenstein argued that there was no good reason to include the reference to the spent convictions, as they referred to matters that had taken place 30 years ago when he was about 30 years old. The only reason for including them must have been spite, and striking out the plea undermined the scheme of the1974 Act. Even if it was permissible to include convictions that related to dishonesty because Mr Greenstein was accused of lying and “brazen deception”, it was irrelevant and therefore evidence of spite to include them for criminal damage and possession of drugs. Further, he said, the judge had been wrong to say that the matters pleaded were mere assertion.

Giving the lead judgment, Lord Justice Dingemans found that the judge had been right to strike out the plea of malice. He said that many of the particulars of Mr Greenstein’s plea were mere assertion (e.g., “the defendant’s motive was to smear the claimant as a criminal”) or did not advance Mr Greenstein’s case on malice (“these historic, spent convictions were part of the claimant’s private life”). Mr Greenstein had not pleaded any facts or matters from which it could be inferred that it was more likely than not that the convictions had been published for some irrelevant, spiteful or improper motive.

Dingemans LJ said that Mr Greenstein’s only potentially sustainable argument was that referring to convictions for vandalism and drug possession was irrelevant to the suggestion that Mr Greenstein was lying. However, in Dingemans LJ’s view the argument was not sustainable because:

  1. there was nothing to show that the spent convictions were not included for the reasons set out in the article, namely to show that Mr Greenstein was capable of lying and “brazen deception”; this was so even though, as a matter of logic, convictions for criminal damage and possession of drugs do not establish a propensity to lie or deceive; however, people do not always form beliefs by a process of logical deduction and the author of the article had expressed the view that the convictions were “entirely relevant” to the question of whether Mr Greenstein had lied;
  2. the law has long recognised that it is only fair for someone to know the character of a person who is attacking the character of another; the article invited the reader to make an assessment about Mr Greenstein in the context of his petition to remove CAA’s charitable status, which CAA considered an attack on its existence; convictions might be indirectly relevant because “a person who would do something like this is not a person whose word can be trusted” (R v Brewster [2010] EWCA Crim 1194); it was not possible to infer that the inclusion of the spent convictions was done out of spite, without some other facts and matters about the author’s motivation;
  • it was not pleaded in these terms; it was only raised in oral submissions and no application was made to re-amend; any application to re-amend would not have succeeded in any event due to the above two reasons.

The appeal was dismissed. (Tony Greenstein v Campaign Against Antisemitism [2021] EWCA Civ 1006 (9 July 2021) — to read the judgment in full, click here).