Doyle v Smith: Blogger’s public interest defence fails

In Doyle v Smith [2018] EWHC 2935 (QB), a parish councillor and blogger/citizen journalist, failed to defend a libel claim on the grounds that publication had been on a matter of public interest.  The case is the first example of a blogger seeking to rely on the statutory defence introduced by section 4 of the Defamation Act 2013 (in place of the common law defence of ‘Reynolds’ qualified privilege). It is distinguishable from Economou v de Freitas [2016] EWHC 1853 (QB)/[2018] EWCA Civ 2591 because in that case the publications were made in conjunction with mainstream media publishers.  Whilst the facts of Doyle are relatively singular, they concerned a planning dispute, and as Mr Justice Warby notes in the first paragraph of his judgment, these are frequently the genesis of defamation claims (including, of course, many which are threatened or initiated but never reach trial), arousing ‘heightened emotion’ and ‘dark suspicions’ about people’s conduct and motives.

The Claimant, Stephen Doyle, was a property developer, who owned, through his company Templeview, land adjacent to the home of Luton Rugby Football Club, in Newlands, Luton.  Templeview had residential planning permission for its land, and it wished to acquire the rugby club’s land so that it could expand its intended development.  Having heard that the rugby club was in some financial difficulty, Mr Doyle came up with a proposal, in early 2015, for Templeview to purchase and develop a greenfield site close to the nearby village of Caddington.  It would then purchase the club’s Newlands home, and sell to it, the Caddington site.

Mr Doyle’s proposal was voted on (and approved) by the rugby club’s members at a special general meeting (‘SGM’) of October 2015.  Ahead of the meeting an ‘Important Notice’ had been issued by the club to its members, containing the details of the proposal.  It was later accepted that certain information in the Important Notice (predominantly around planning issues) was inaccurate or misleading.  Significantly, however, Mr Doyle had not seen the Important Notice ahead of it being issued by the club, or indeed by the time of the vote.

The Defendant, Patrick Smith, was a resident of Caddington, near the rugby club’s proposed new site, and a member of Caddington Parish Council.  He was also the operator and publisher of a blog called Caddington Village News.  He got word of the proposal and a copy of the Important Notice in November 2015.  By speaking to the head of planning at Caddington Parish Council he discovered, or confirmed, the fact of one of the apparent errors in the Information Notice.  He went on to publish a series of four articles about Mr Doyle’s proposal on Caddington Village News, over a period of some eight months.

The first article suggested that the members of the club may have been misled by the club’s management committee, pointing out the apparent error in the Important Notice in respect of contact with planning authorities.

The second article, published several months later, followed some communications between Mr Doyle and Mr Smith.  It reported that Mr Doyle had confirmed that there had been inaccuracies in the Important Notice, but bizarrely suggested that he had admitted knowing about these, when the opposite was true, and implicated him in what was described as a ‘£10m fraud’.

The third article related to allegations of blackmail and malicious communications made by Mr Smith against Mr Doyle to the police.  It stated that Mr Doyle had been arrested.  The origin of the allegations were the communications between the two ahead of Mr Smith’s publication of the second article.  In those communications, Mr Doyle, seeking to prevent publication by Mr Smith and/or for Mr Smith to reveal his sources, made vague threats as to ‘consequences’ (by which he could have meant legal consequences).  Mr Doyle was in fact interviewed on a voluntary basis by the police, but Mr Smith wrote that he had been arrested (having apparently been told by the police that this would happen).  Mr Smith said that he had used a ‘hide’ function on the third article, believing that it was therefore not freely accessible on Caddington Village News, though he later admitted that (unbeknownst to him at the time) it was in fact accessible in response to relevant search terms.  There was evidence that various third parties had read it, both by accessing Caddington Village News and via relevant Google searches.  Mr Smith later deleted the third article, with Warby J finding that the third article was accessible for about 15 days in total.  The evidence showed that it was viewed on some 69 occasions.

The fourth article was essentially a watered-down version of the third, which confirmed that Mr Doyle had been interviewed by police (and did not suggest that he had been arrested).

Mr Doyle sued Mr Smith in respect of the second and third articles, claiming that the second accused him, in short, of a £10m fraud, and that the third suggested there were reasonable grounds to suspect him of blackmail and malicious communications.

Mr Smith initially sought to defend the claim on the basis that what he had written was true, but by the time of the trial he contended that the second article was defensible as a publication on a matter of public matter interest (pursuant to section 4 Defamation Act 2013), and that the third article did not cause, and was not likely to cause, serious harm to reputation (the requirement under section 1 Defamation Act 2013).  He also, belatedly, sought to argue that the claim in respect of the third article was a ‘Jameel’ abuse of process (Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 74).

The second article: meaning and publication on matter of public interest

Mr Doyle argued that the second article contained an unequivocal allegation of fraud against him (a so-called ‘Chase level 1’ meaning).  Mr Smith argued that, viewed in context, the reasonable reader would understand that this was the ‘output of an amateur blogger who is accustomed to posting provocative material using colourful language’, and that the allegation was, at the most, a ‘Chase level 2’ meaning i.e. that there were reasonable grounds to suspect Mr Doyle of fraud.  Warby J rejected the suggestion that any decision on meaning should be influenced by the possibility for readers to discount a defamatory message, owing to the fact that the writer was an amateur with a tendency to overstatement.  This would be to confuse the message with the reader’s response to it, and therefore wrong in principle.  Warby J determined that the meaning of the second article was:-

‘There was very good reason to believe that the Claimant had been guilty of participation in an attempt to defraud members of the Club of many millions of pounds, by allowing the Club to issue what he knew to be false and deceptive documentation about a proposed land sale and then, with a view to ensuring the proposal went through, asking the Club not to correct it’

Warby J held that this ‘fell short’ of a Chase level 1 imputation, but was nevertheless a ‘significantly graver imputation’ than Chase level 2.

He then went on to consider the section 4 defence, which involves two-stages.

Whether the statement complained of was, or formed part of, a statement on a matter of public interest (section 4(1)(a))

Warby J noted that it is not sufficient that the statement in question has ‘some relevance to’ or ‘some bearing on’ a matter of public interest.  The statement itself must be on – or form part of – a matter of public interest, and this is an objective test.  When pleaded, Mr Smith’s Defence had referred to four matters of public interest, one of which was ‘the environmental and planning impact of the proposed development upon the local community in Caddington in terms of a large new development on a greenfield site, additional traffic and impact on quality of life’.  However, the second article simply did not contain any reference to these matters, and therefore they could not assist the defence of the claim.  The closing submissions on behalf of Mr Smith had expanded the list to eight matters of public interest.  These similarly included references to traffic, health and education.  Again, Warby J found that whatever might be said about these topics (and, clearly, they are matters which, in very general terms, one would expect to be in the public interest), they were not referred to in the second article.  Therefore, the statements complained of were not ‘on’ them.  whilst it was agreed that the second article had to be read against the background of the first article (it addressed the same readership and assumed a degree background knowledge), this did not affect the judge's decision on these points.  Warby J held that the ‘general subject matter’ of the second article was ‘the Club’s proposed move from Newlands into Caddington’, and that, more specifically, it was about: -

• ‘information issued by the Club to its members in the Important Notice'
• ‘what Mr Doyle (the ‘person behind the proposed move’) had said to the [Caddington Village] News about that Notice and his role’
• ‘and the implications of and conclusions to be drawn from his statement as to (a) the integrity or reliability of the information in the Notice; and (b) the validity of the resulting vote.'

Therefore, the first question for the Court to determine was whether these were matters of public interest.

In a passage which may well be of use to practitioners in future cases, Warby J stated that there would not ordinarily be any public interest in the internal workings of a members’ club, which are ‘intrinsically a private matter’.  More significantly, this remained the case even in the event that the members might ‘have been misled by some document issued by its officers, concerning their affairs or property’, and/or the decision-making might have an impact on another group within the community, such as (in this case), local rugby supporters who were not members of the club.  The position would only be likely to be different where the private club ‘makes or contemplates a decision with significant effects on the outside world, and those who dwell in it’.  However, in this case, as the rugby club was a significant community institution, Warby J felt that its departure from Newlands and arrival near Caddington would have a significant enough impact on those areas, that the proposal was a matter of public interest.  By extension, he held that the more nuanced subject matters were in the public interest because ‘if the vote had been corrupted by deception, it might be invalidated or revisited and there could be a different outcome’.  As such, the first limb of the section 4 defence was satisfied.

Whether the Defendant reasonably believed that publishing the statement complained of was in the public interest (section 4(1)(b))

In order to meet this limb, a defendant must ‘(a) prove as a fact that he believed that publishing the statement complained of was in the public interest, and (b) persuade the Court that this was a reasonable belief’ (Warby J in Economou; 139).  Warby J also reiterated the view he expressed in Economou (at 153) that the belief must be that ‘the statement’ is in the public interest, as opposed to the defamatory imputation.  This is to be distinguished from the position when arguing a truth defence.  Warby J found that Mr Smith had not adequately pleaded, nor proved, that he had a belief that it was in the public interest to publish the statement complained of.  For this reason, the defence failed.  Whilst his Defence set out the factual sequence upon which Mr Smith relied, and asserted his belief in the public interest, it did so in general terms, rather than by specific reference to the statement complained of.  Critically, Warby J found that Mr Smith had known a key line in the second article to have been false.  Not only had he omitted Mr Doyle’s own explanation of events from the second article, he published a false confession.  It would appear that there was some discussion around whether one mis-statement could deprive the defendant of the defence (if other statements could succeed).  Warby J stated that this might not be the case if the misstatements were insignificant, but in this case, it was a major component of the factual picture.  Although he might have left it there, he went on to reinforce a point he made in Economou that ‘a ‘citizen journalist’, composing and publishing what purports to be investigative journalism, should be expected to conform to the requirements of Reynolds [i.e. the ‘checklist’ of the old common law defence] before he can claim the benefit of section 4’.  Even in the event of Mr Smith satisfying the Court that he had believed that it was in the public interest to falsely inform readers of a confession by Mr Doyle, such a belief could not be characterised as reasonable.  It was argued on behalf of Mr Smith that ‘all the circumstances of the case’ – which fall to be considered under section 4(2) – should include ‘the status and characteristics of the publisher including whether or not s/he/it is a professional media organisation/journalist, and the journalistic training and experience of the person concerned’.  This was rejected by Warby J, distinguishing what he said in Economou about the ‘role’ of the defendant.  He held that the position should be analogous with the requisite standard of care in the law of negligence, which remains the same, regardless of a person’s attributes.

Mr Smith accepted that the second article had met the serious harm threshold.

The third article: serious harm and ‘Jameel’ abuse of process

It was admitted that the third article bore a Chase level 2 meaning, that there were reasonable grounds to suspect Mr Doyle of blackmail and malicious communications.  Warby J found that this meaning, coupled with the evidence on extent of publication, was one which was sufficiently harmful to justify an inference of serious reputational harm.

For Mr Smith it was argued (seeking to rebut the inference) that Mr Doyle had adduced evidence of only two people ‘outside his own camp’ who had read the words complained, but Warby J concluded that these evidential limitations were commonplace and the reasons for them well-known.  It was also argued that most people would have known that the arrest allegation was untrue or would have had doubts as to its credibility.  Warby J rejected this: it would have been true of some of those closest to Mr Doyle, but other readers would have no reason to doubt that which was presented as fact.  The available evidence supported this conclusion.  Whilst Mr Doyle could have (and in the event did) issue a prompt rebuttal, he would not have been able to identify all the publishees.  This meant he would have communicated the allegation to some who had not read it in the first place, whilst being unable to fully remedy the ‘grapevine’ effect.   Whilst the fourth article will have had some mitigating effect, it did not retract the earlier allegation and there was no evidence that it undid the reputational harm; some who read the third article, will not have read the fourth.  Thus, the serious harm threshold was met.

Warby J held that Mr Smith should not be permitted to raise a Jameel argument at such a late stage – whether regarded as a ‘fall back defence’ or a branch of the law of abuse of process, it should be pleaded in order to allow the claimant fair and proper notice of it, and any application to amend would be subject to the usual test.  However, even if that were wrong, the argument in this case would fail on its merits.  The arguments advanced in respect of the Jameel application were not materially different to those addressed in respect of serious harm.  It would be incoherent to permit a Jameel defence on the basis that the reputational harm was insufficient to justify the interference with Article 10, where it had been found that the serious harm test had been met.

Mr Doyle was awarded £30,000 for the second article and £7,500 for the third article, and granted an injunction to restrain repetition.

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