Public interest defence not a tick-box exercise
16/06/2020
Every now and then a decision emerges from the appeal courts which has a significant impact on the day-to-day operation of journalism. In the last couple of weeks, we have seen one such decision handed down from the Supreme Court, the consequences of which are fundamental changes in the construction and analysis of public interest defences.
The general effect of these changes is a very positive one for the press. The threshold for a successful defence under these provisions has for all intents and purposes been lowered, and this in itself represents a victory for freedom of expression.
The case, Serafin v Malkiewic [2020] UKSC 23, was brought by the Claimant originally following the publication of an article in the popular Polish language newspaper, Nowy Czas, which at the time, had a circulation of approximately 5,000.
The article contained very serious allegations about the actions of the Claimant relating to his charitable work for various Polish organisations and related financial transactions.
At first instance, the trial judge upheld a defence of publication in the public interest pursuant to section 4 of the Defamation Act 2013. However, in a surprising turn of events, this decision was completely reversed by the Court of Appeal and it was held that the public interest defence had not been made out successfully. More surprisingly still, was the damning criticism levelled by the appeal judges towards the original trial judge, who they found to have “cast off the mantle of impartiality” towards the Claimant.
Fast-forward to the present day and we now have yet another surprising decision in this saga, this time from the Supreme Court. In the leading Judgment, Lord Wilson said that it was incorrect to proceed on the basis that the requirements of the new(ish) statutory defence under s.4 of the Act could be considered equivalent to those of the old “Reynolds” defence.
Under the 2013 Act, a two-stage approach is set out. Firstly, it must be considered as to whether the statement complained of was, or formed part of, a statement on a matter of public interest. Secondly, the Defendant publisher must reasonably believe that publishing the statement complained of was in the public interest.
The Act further states that in conducting the relevant analysis the court must have regard to “all the circumstances of the case”.
In the case of Serafin it was held that, following the wording of the legislation “the question is not whether the article is “in the public interest” but whether it is on a matter of public interest”, and that the Court of Appeal had been mistaken in their decision on this point previously.
Specifically, and no doubt of great interest to reporters everywhere, it was confirmed that whilst the factors set out in Reynolds may be considered relevant when determining the second part of the two-stage test – whether the publisher’s belief that the statement complained of was in the public interest was reasonable – consideration of the factors is no longer to be treated as a ‘tick box exercise’. In his reasoning, Lord Wilson stated, “I suggest that reference to a checklist is now inappropriate…and that reference to acting “responsibly” is now also best avoided.”
So, what now?
Well, as the original trial was ruled to have been unfair on the basis that the claim for defamation was not allowed to be presented properly, it means that the previous judgments in the case cease to have any effect, the issues will all be determined afresh at the re-trial.
However, in wider terms, the take-home message here is that it is vitally important to stick to the two-stage approach as set out in the Act. Although the Reynolds factors are no longer permitted to be a checklist of requirements, they remain relevant to establishing whether it was reasonable for a journalist and/or editor to believe that it was in the public interest for the article to be published.