Economou v De Freitas: is a contributor to a matter of public interest now immune from suit?

In Economou v De Freitas [2018] EWCA Civ 2591, the Court of Appeal considered the scope of the “publication on a matter of public interest” defence under section 4 of the Defamation Act 2013 for the first time.

Facts

As the Court of Appeal acknowledged, the background to the claim was tragic.

In late December 2012, the claimant, Alexander Economou, and Ms de Freitas, the daughter of the defendant, had a brief sexual relationship.

Mr Economou discovered information online about Ms de Freitas which caused him to end the relationship.  He did this by telephone.  Ms de Freitas was upset by Mr Economou’s decision and conveyed her feelings to friends on social media and by text.  Her messages indicated that she was confused as to why Mr Economou had ended the relationship abruptly.  Ms de Freitas suffered from affective bipolar disorder.

In early January 2013, Mr Economou became aware that Ms de Freitas had told mutual acquaintances that he had raped her.  Mr Economou strenuously denied this charge and attended Chelsea police station on 4 January 2013 to report Ms de Freitas’ conduct.  However, on his arrival at Chelsea Police station, Mr Economou was arrested on suspicion of rape.  Ms de Freitas had made a complaint at the same police station earlier that day.  Having carried out investigations, the Police informed Mr Economou six weeks after his arrest that no charges would be brought against him.  This decision appears to have been based on evidence amassed by Mr Economou and his solicitors, which impugned Ms de Freitas’ claim.

Following this decision, Mr Economou instructed solicitors to initiate a private prosecution against Ms de Freitas for perverting the course of justice.  His case in outline was that after they had had sex in late December 2012 and he had told her that he no longer wished to see her she began spreading baseless allegations about him.  When Mr Economou sent an email on 4 January 2013 threatening to report the matter to the police Ms de Freitas went to the police herself, knowingly making a false complaint of rape.

The case was listed for a Crown Court trial on 7 April 2014.  By this stage, the Crown Prosecution Service (‘CPS’) had agreed to take over the prosecution.  Tragically, however, on 4 April 2014, three days before her trial was due to commence, Ms de Freitas committed suicide.

A Coroner’s Inquest into Ms de Freitas’ death was listed to be heard on 7 November 2014.  Mr de Freitas requested that the scope of the Inquest be expanded to include the conduct of the CPS in taking over the prosecution, concerning what he believed were institutional failings that caused or contributed to his daughter’s death.  This request was refused.

In November 2014, Mr de Freitas told his story about the circumstances leading to his daughter’s death to selected media organisations who subsequently published it. The claim was originally brought in respect of seven publications between November and December 2014, five of which formed the subject of the appeal.

The publications were essentially about the CPS and Ms de Freitas. In short, Mr de Freitas was astonished that the CPS had continued to prosecute his vulnerable daughter when he did not feel that either the evidential or public interest tests under the Code for Crown Prosecutors had been met.  Although the main focus was the CPS and Ms de Freitas, each publication imputed something about Mr Economou.

Decision at first instance

The outcome of the first instance decision, Economou v David de Freitas [2016] EWHC 1853 (QB), was reported on our blog here.

The natural and ordinary meaning Mr Justice Warby attributed to each of the relevant publications is set out at paragraph 14 of the Court of Appeal’s judgment.  Each contained an allegation of rape against Mr Economou although this was not expressed in terms of actual guilt.  Warby J found that two of the publications forming the subject of the appeal had caused Mr Economou serious harm within the meaning of section 1(1) of the Defamation Act 2013.

Warby J concluded, however, that the statements complained of were on a matter of public interest and that Mr de Freitas reasonably believed that publishing the statements was in the public interest, thereby satisfying the requirements of the public interest defence under section 4(1) of the Defamation Act 2013.

In support of his finding that Mr de Freitas’ belief in the public interest was ‘reasonable’, Warby J identified a number of important factors, some of which were derived from the seminal case of Reynolds v Times Newspapers and ors [2001] 2 AC 127, well-known to all media law practitioners (notwithstanding that section 4(6) of the Act expressly abolished the common law Reynolds defence).  The factors that Warby J took into consideration in Economou included the following:-

• Mr de Freitas reasonably regarded the issues raised as matters of considerable public importance.
• Mr de Freitas was in a unique position to raise the issues (not least because his main source of information was his daughter up until her death).
• He had some inherently reliable information, having observed some of the history first hand.
• In each case the publications were “about” the CPS and his daughter, not Mr Economou.
• Mr De Freitas had deliberately avoided naming Mr Economou.
• There was some urgency to the matter, given the stage that had been reached in the inquest proceedings.
• The tone of what Mr De Freitas said was found to be responsible and measured.
• It was difficult to see how Mr De Freitas could have expressed his sincere doubts about the CPS without the risk of impliedly defaming Mr Economou.

In addition, Warby J considered that it was appropriate to hold Mr de Freitas to a lower standard that than of a journalist because he was not one.  His role was closer to that of a source or contributor.  Accordingly, less weight was attached to certain factors, such as a failure to include the gist of Mr Economou’s case in the publications, than might otherwise have been the case had Mr de Freitas been acting as a professional journalist.  Mr de Freitas, according to Warby J, was entitled to place some reliance on the publishers to carry out appropriate checks and provide appropriate balance.

Grounds of appeal

Mr Economou took issue with Warby J’s analysis of the ‘reasonable belief’ limb of this test and this was the main focus of the appeal.  Central to the appeal was the argument that Warby J had adopted a flawed approach in the way he viewed Mr de Freitas’ role, which, in effect, conferred “contributor immunity” on him.  The criticisms included that the Judge had failed to give sufficient weight to the seriousness of the allegations, excused Mr de Freitas’ conduct in failing to seek any comment from Mr Economou and, perhaps more seriously, failed to include the gist of Mr Economou’s case in the publications (which was known to Mr de Freitas at the material time).

Mr Economou also contested that Warby J had erred in failing to draw an inference of serious harm in respect of certain publications given the gravity of the imputations.  However, this article focuses only on the appeal in respect of the public interest defence.

Court of Appeal Decision

Section 4 of the Defamation Act 2013 requires the court to have regard to all the circumstances of the case when determining whether Mr de Freitas reasonably believed that publishing the statement complained of was in the public interest.  The Court of Appeal decided that the considerations taken into account by Warby J, including the particular role of Mr de Freitas, were the circumstances to which he was obliged to take account under section 4.  The Court of Appeal was persuaded that Warby J was “perfectly alive” to the important factors Mr Economou suggested were not properly taken into account, such as the seriousness of the allegations complained of.  Warby J had therefore not erred when carrying out his assessment of all the circumstances of the case.  Accordingly, Mr Economou’s appeal was dismissed.

So, does Economou make contributors immune from suit?

The short answer is no. The Court of Appeal made it very clear that each case will depend on the specific facts.  Mr de Freitas had not relied wholly on the publishers to perform the necessary checks prior to publication and to ensure the publications were accurate and balanced.  Warby J held that Mr de Freitas had some inherently reliable information and had made reasonable and responsible investigations into the merits of the case against his daughter for someone in his position.  Had he not done so, the outcome of the case may well have been different.

In practical terms, the judgment emphasises how important it is for claimant lawyers to investigate the steps taken by the proposed defendant prior to publication to understand the strength of the second limb of a section 4 defence.   Such information can often be easier to obtain when dealing with a responsible publisher who will ordinarily engage in pre-publication correspondence where there is an intention to publish defamatory allegations.   In this respect, there ought to be more transparency in the newsgathering process (although invariably even responsible publishers will seek to protect their sources).

In the case of a contributor, however, the position is likely to be less clear, particularly if s/he chooses not to adhere to the Reynolds principles of responsible journalism (e.g. putting the allegations to the subject prior to publication etc).  What the contributor has or has not done to verify information, for instance, might remain relatively unknown, at least until the litigation develops.

In cases where there is uncertainty as to whether the publisher or contributor has a stronger public interest defence it may be sensible to send Letters of Claim to both, in the hope that their responses shed light on precisely what each has done prior to publication to ensure that the article is fair, balanced and accurate and thereby afford themselves a better chance of being able to rely on section 4.  At that point it ought to be possible for a claimant to make a more informed decision as to the appropriate defendant, or indeed whether a claim should be brought at all.

Find out how Brett Wilson LLP can assist you if you have been defamed.