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21.12.21

Fighting fire with fire: making counter-allegations in response to a libel

It is normally defamatory to allege that a party has committed a serious crime.  However many publishees will choose to publicly rebut an allegation, accuse the publisher of dishonesty and/or make counter-allegations, rather than sue for libel.  But does this itself not put the accused at risk of being sued for defamation themselves?  The answer is not necessarily, as in certain circumstances the law allows a ‘right to reply’ to a defamatory attack.  In Bento v The Chief Constable of Bedfordshire Police [2012] EWHC 1525 (QB) Mr Justice Bean (as he then was) summarised the position:-

"[101]...it is recognised at common law that a person may publish, in good faith, false and defamatory statements about another in reply to an attack by that other, and as a defence to that attack. …..The rationale is that a person who has been attacked publicly has a legitimate right or interest in defending himself against it, and the [readers or viewers] of the original attack have a corresponding interest in knowing his response to it. The response has to be proportionate to the original attack in that it should not be made more widely than the attack or include irrelevant statements"

As such, the ‘right to reply’ is actually a form of qualified privilege (see our blog here for a broader overview of the common law defence) that arises specifically in the context of a reply to attack.

The legal practitioner texts follow relatively similar wording, and together with various cases, the position has developed in to a largely settled set of requirements, including (amongst some others):-

  1. The response must be a response (and be read to be an actual response: not a separate attack dressed as a response);
  2. The response must be proportionate (e.g. not published to a substantially different/bigger audience to the initial defamatory statement);
  3. The response must be made without malice (e.g. knowing it to be false or with reckless indifference to its truth); and
  4. It must not be a response to an allegation he or she knows to be justified (i.e. if the original statement is known to be true, the right to reply defence will not hold up).

Theoretically, this defence can be deployed by libel claimants, who, having been libelled, publish a rebuttal and rely on the principle in defending a counterclaim.  In practice, however, for a great many reasons, libels normally go unlitigated.  In the recent case of Abdulrazaq and others v Hassan and others [2021] EWHC 3252 (QB) no proceedings were brought by the Trustees of Exeter Mosque, the Defendants, over the initial allegedly defamatory publication by the Claimants (who were once members and attendees of Exeter Mosque).  Instead, the Defendants relied on their right to reply to an attack in defending the claim, pleading that the allegedly defamatory statement over which proceedings had been issued was made in response to an earlier defamatory statement made by the Claimants.

In Abdulrazaq there had been a protracted dispute between the Claimants and the Defendants, which had included extensive litigation between the parties prior to the alleged libels.  In September 2019, the Claimants published a leaflet alleging that the Defendants had accepted funds from Sadiq Al-Ghariani, the Grand Mufti of Libya, who it is said has links with extremism.  The Claimants’ leaflet also alleged that there were missing donation monies and that the Mosque had been run in an undemocratic and unconstitutional manner.  In response to the Claimants’ leaflet, the Defendants published a notice and leaflet of their own accusing the Claimants of various instances of wrongdoing spanning a number of years, and expelled them from the mosque.

As above, the Defendants did not sue over the claimants’ allegations, but the claimants did sue over the defendants’ notice and leaflet, and the Defendants relied on (amongst other things) the twin bases of reply-to-attack privilege and common or corresponding duty and interest qualified privilege to defend the claim (more on qualified privilege can be found here). The defendants applied for summary judgment (on the basis that the words were published on an occasion of qualified privilege and the claimants could not prove malice in order to defeat this defence).

At the hearing of the Defendants' application for summary judgment, the Claimants argued that their defamatory statement (the claim that, amongst other things, the mosque had accepted funds from Mr Al-Ghariani) had been made in anticipation of an attack by the defendants, and so the ‘reply-to-attack’ defence applied to them (the claimants).  If that was accepted, they said, then that would make the defendants’ notice and leaflet a ‘response to a reply’, and so not covered by privilege.

As the summary judgment procedure dictates, Mr Justice Jay took the Claimants’ case at its highest, and assessed it against the qualified privilege defence generally, and against the reply-to-attack defence. He went on to consider whether the Claimants had any prospect of successfully arguing that the statement had been made maliciously.

In deciding the matter, Jay J held that the qualified privilege and reply-to-attack defences were irresistible and that the Claimants had no realistic prospects of establishing malice.  He also described the Claimants’ ‘anticipation of attack’ argument as ‘ingenious’.  It is questionable whether a response to an anticipated attack would be covered by privilege (in Bento Bean J said "[103] ... I see no policy reason to extend qualified privilege to people who believe they are about to be criticised and decide to get their public retaliation in first).  In this case, however, Jay J did not accept that the claimants were genuinely anticipating an imminent attack, and so they could not defeat the defendants’ privilege defence by deploying it themselves first in any event.

Jay J found for the defendants, dismissed the claim and awarded them their costs of both the application and the claim.

The decision brings together a number of relevant authorities in a well-reasoned judgment.  Those wishing to address defamatory statements made about them (but not sue for defamation themselves) by 'fighting fire with fire' may be particularly interested in the guidance offered on what such statements should contain and what should be avoided.

 

Click here to find out how Brett Wilson LLP Solicitors can assist you if you have been defamed or accused of defamation.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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