The claimant is a businessman who was the leader of the campaign for the UK to leave the EU. The defendant is a freelance journalist. The claimant sued the defendant for libel in a talk (“the TED Talk”) and a tweet (“the Tweet”), each of which suggested that the claimant had secretly broken the law on electoral funding by taking money from a foreign power and subsequently lying about it. The TED Talk and the Tweet were both published online to a substantial audience in this jurisdiction.
By the time of the trial, official investigations had found no evidence that there had been any such breach of the law, and so a defence of truth was abandoned by the defendant. Instead, she relied on the statutory defence of publication on matters of public interest. The case hinged on (a) whether the claimant had proved that publication had caused serious harm to his reputation or was likely to do so, and if so, (b) whether the publication was protected by the public interest defence.
In the High Court, the trial judge held that the defendant was only able to rely on the defence of public interest until publication of a statement by the Electoral Commission exonerating the claimant. Despite this, the trial judge concluded that the claimant did not meet the threshold for serious harm in the second phase of publication of the Ted Talk or the Tweet and the claim was therefore dismissed.
The three issues put to the Court of Appeal (“the Court”) were:
- Where the defendant has a public interest defence that falls away, is the fact that the first phase of publication caused serious harm to the claimant’s reputation enough to justify a judgement for the claimant in respect of the second phase? The trial judge held it is necessary for the claimant to prove that publication in the second phase has also caused serious harm or is likely to do so.
- The second issue concerned the trial judge’s approach to the question of whether serious harm was established. The trial judge had found the harm caused by the Ted Talk and the Tweet were reduced by the fact that most of those to whom the publications were made were (a) in the defendant’s “echo chamber” and (b) people whose opinion of the claimant was of “no consequence” to him. The claimant argued that this was wrong in principle or unsupported by the evidence.
- The third issue was whether the alleged errors of law undermined the trial judge’s overall conclusions and her decision to dismiss both claims.
On the first issue, the Court agreed with the trial judge’s decision that the finding of serious harm at the time of the publication needed to be reassessed at the point which the public interest defence fell away (i.e., phase two of the publication). A statement is only to be regarded as defamatory if, and to the extent that, its publication causes serious harm to reputation or is likely to do so. It is a reminder in cases that involve continuing publication that each phase must individually cause serious harm to the claimant’s reputation.
On the second issue, the Court disagreed with the trial judge’s finding that the publication did not cause serious harm because it was made in the defendant’s “echo chamber”. It was significant that the TED Talk had been extensively published in England and Wales in Phase Two and the trial judge’s finding that the harm caused was less because the opinions of these viewers were of “no consequence” to the claimant was wrong in principle.
On the third issue, the Court held that despite the trial judge erring on the second issue, this did not fatally undermine her conclusion insofar as the Tweet was concerned. However, in light of the finding on the second issue, it was incorrect to conclude that harm caused by the later publication of the TED Talk was not serious.
The Court held that damages should be assessed and awarded in respect of phase two of the publication of the TED Talk but not in respect of the publication of the Tweet.
The appeal reinforces to journalists the need to continually assess whether a statement remains in the public interest. If new evidence comes to light which causes the defence to fall away, the availability of other defences should be considered -if there are none, this case highlights the risk of a defamation complaint being upheld if serious harm is being caused.
A link to the judgment can be found here.