HomeInsightsCourt of Appeal upholds decision that a “citizen journalist” could rely on public interest defence and should not be held to the same standards as a professional journalist

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The defendant, David de Freitas, was the father of Eleanor de Freitas, who had committed suicide shortly before the start of a trial in which she was being prosecuted for perverting the course of justice by allegedly falsely accusing the claimant in this case, Alexander Economou, of rape. Ms de Freitas, who had suffered from bipolar affective disorder, had denied the charge. The prosecution had been begun as a private prosecution by Mr Economou, but had subsequently been taken over by the Crown Prosecution Service.

When the Coroner in the inquest into Ms de Freitas’s death had initially refused to consider the role of the CPS in his daughter’s death, the defendant, Mr de Freitas, had gone to the press. Various articles and broadcasts were published during November and December 2014 that were defamatory of Mr Economou.

Mr Economou issued defamation proceedings against Mr de Freitas. At first instance, the judge found that:

  1. the five publications concerned referred to Mr Economou and bore meanings that were seriously defamatory of him (in the common law sense) albeit in a lesser defamatory meaning than that of which he complained;
  2. Mr Economou had failed to establish that the November 2014 publications had caused him serious harm within the meaning of s 1(1) of the Defamation Act 2013. They were not, therefore, defamatory of him in the statutory sense, and the claim in respect of them failed;
  3. the Decemsber 2014 publications had caused Mr Economou serious harm;
  4. however, the public interest defence under s 4 of the Defamation Act 2013 succeeded in respect of each of the publications complained of. Therefore, the claim in respect of the December publications failed, as it would have done for the November publications if they had surmounted the statutory threshold of serious harm. The judge found that the statements complained of related to a number of topics of undoubted public interest and Mr de Freitas had reasonably believed that the publications were in the public interest.

Mr Economou appealed the judge’s determination of the public interest defence and of the serious harm issue in relation to the November publications.

Mr de Freitas cross-appealed, challenging the judge’s determination of the meaning of one of the articles, which he had written and which had been published in his name on the Guardian website in December 2014. It had appeared under the headline: “My daughter killed herself after being charged over rape claims”, and with the sub-headline: “Eleanor de Freitas died on the eve of her trial for perverting the course of justice – but why did the CPS pursue the case?” Mr de Freitas argued that it bore a lesser defamatory meaning than the one the judge had found.

Meaning

Giving the lead judgment, Lady Justice Sharp was not persuaded that the judge was wrong on the meaning of Mr de Freitas’s article in the Guardian.

The judge had found that the meaning was that there were strong grounds to suspect that the decision of the CPS to prosecute Ms de Freitas might have been a mistake, as there were strong grounds to doubt there was an evidential case against her. This implied that there were strong grounds to suspect that Mr Economou had been guilty of rape and had falsely prosecuted Ms de Freitas for perverting the course of justice.

Sharp LJ said that it was true that the judge had not given “chapter and verse” on the meaning he had found, but the determination of meaning was always “a matter of impression, rather than forensic analysis, where over-elaboration is to be avoided”. In some cases, she said, “more ink needs to be spilt on explaining the rejection of a pleaded meaning, than in explaining the actual meaning found”. In any event, the judge’s process of reasoning was discernable from the meaning he had found: if, as the judge had considered the relevant words suggested, there were strong grounds to doubt there was an evidential case against Ms de Freitas and that there were strong grounds to suspect that the decision of the CPS to prosecute Ms de Freitas might have been a mistake, it was not unreasonable to infer that there were strong grounds to suspect that Mr Economou was guilty of her rape, and had therefore falsely prosecuted a case against her.

The cross-appeal therefore failed.

Serious harm

Here, Mr Economou contended that the imputations in the November publications were so grave that the judge should have inferred that they had caused his reputation serious harm.

Sharp LJ noted that Mr Economou was not actually identified in the November articles. At first instance, Mr Economou had tried to prove actual serious harm by establishing that there were readers, some of whom he had named and others who he had described, who knew enough to identify him as the man accused by Eleanor de Freitas and who would therefore have understood the words to refer to and defame him. However, the judge had not been persuaded that there were large numbers of these people.

Sharp LJ said that, whilst the judge had accepted that hostility and caution had been displayed towards Mr Economou and that he had suffered serious harm to his reputation by late 2014 (i.e. following publication of the additional December articles), he had not been satisfied that this was causally connected to the November articles. The fact that an inference of serious harm could be drawn in an appropriate case did not, in Sharp LJ’s view, preclude the sort of causation analysis the judge had undertaken.

Public interest defence

Here, it was only the question of whether Mr de Freitas had reasonably believed the publications to be in the public interest that was at issue. The question raised difficult issues, Sharp LJ said, in particular the extent to which contributors to media publications or “citizen journalists” should be made subject to the same standard of “responsible conduct” required of professional journalists.

Sharp LJ noted that s 4(6) of the 2013 Act had abolished and replaced the common law defence in Reynolds v Times Newspapers [2001] 2 AC 127, but the principles therein identified were still relevant to the interpretation of s 4. The non-exhaustive checklist of Reynolds factors were therefore relevant to the outcome of a public interest defence. However, the weight to be given to those factors, and any other relevant factors, varied from case to case and depended on the facts.

Sharp LJ noted further that the s 4 defence was not confined to the media, which had resources and other support structures others did not have. Section 4 required the court to have regard to all the circumstances of the case.

Mr Economou argued that Mr de Freitas’s conduct had fallen short of the standard of responsibility comprised by the non-exhaustive checklist of Reynolds factors. He said there was no credible source of any evidence to support Mr de Freitas’s condemnation of the case against his daughter. Further, he said, Mr de Freitas had not taken any steps to verify the truth of the allegations before he made them, and he had no adequate reasons for taking issue with investigations, such as that of the CPS, that commanded respect. Mr de Freitas had not sought comment from Mr Economou, he said, and had ignored what Mr Economou had repeatedly told him. Finally, he said, Mr de Freitas had failed to include even the gist of Mr Economou’s side of the story, and his purpose in going public was improper.

Sharp LJ found that the judge had given very careful consideration to these arguments, acknowledging that they would have had obvious force if Mr de Freitas had acted as a journalist, composing and publishing what purported to be investigative journalism. However, the critical point was, the judge had said, that it was not appropriate to hold Mr de Freitas to the standard required of a journalist because he was not one: his role was closer to that of a source or contributor.

On the unusual facts of this case, Sharp LJ said that the judge had not erred and had been entitled to conclude, first that incorporating the “claimant’s side of the story” would have made little sense where the defamatory meanings were implied meanings and secondary to the principal messages of the articles, squarely aimed at the CPS; and secondly, that Mr de Freitas had limited room for manoeuvre. It was true that Mr de Freitas could have added distancing words, but in Sharp LJ’s view, it did not follow from this that the statutory criteria for the public interest defence were not satisfied.

The appeal was dismissed. (Alexander Economou v David de Freitas [2018] EWCA Civ 2591 (21 November 2018) — to read the judgment in full, click here).

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