Is it interesting? New judgment considers the scope of the ‘public interest’ defence

Background

The Claimant, Alexander Economou, was the ex-boyfriend of Eleanor de Freitas, the late daughter of the Defendant and who suffered from bi-polar disorder. Following a brief relationship, Ms de Freitas accused Mr Economou of raping her in December 2012. The Claimant was arrested, interviewed but never charged.

Eight months later, on 2 August 2013, Mr Economou brought a private prosecution against Ms de Freitas, alleging that she had perverted the course of justice by falsely accusing him of rape. The CPS eventually took over – and continued – the prosecution of her. Four days before the trial date in April 2014, Ms de Freitas killed herself.

The Defendant sought to expand the inquest into his daughter's death to include examination of the conduct of the CPS in the prosecution of his daughter. When the Coroner denied this request, Mr de Freitas was advised to "go public" on the issues he wanted raised at the inquest. The Defendant therefore sought press coverage of what he believed to be failures by the CPS.

A total of seven publications appeared in various news outlets in November and December 2014 that the Defendant either wrote or authorised to be written, detailing how the Defendant's daughter had killed herself after being put on trial for allegedly fabricating a rape allegation. The BBC, the Guardian and the Telegraph were amongst those who published stories. It was these seven publications that sparked Mr Economou's libel claim.

Public Interest Defence (s.4 Defamation Act 2013)

Mr Justice Warby concluded that of the seven publications complained of, only two were actionable because they specifically identified the Claimant, they had a defamatory meaning and they caused him serious harm. The other five publications fell down at either the defamatory imputation or the 'serious harm' hurdles.

However, it was held that the 'public interest' defence was made out in respect of all seven publications because they raised questions into the conduct of the CPS prosecution, whether there was sufficient evidence to prosecute the Defendant's daughter and whether her vulnerable mental state was properly considered by the CPS before proceeding. In reaching his conclusion, Mr Justice Warby made clear that the central dispute was not whether the publications concerned matters of public interest (because alleged misconduct by a public body clearly is), but rather whether Mr de Freitas "reasonably believed that publication of the particular statement was in the public interest".

Such a belief will be reasonable "only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant". Given that Mr de Freitas' role was "closer to that of a source or contributor than that of a journalist", it would be wrong to expect him to carry out the necessary checks and enquiries that the journalist is professionally expected to do prior to publication.

Warby J clarified that the 'new' public interest defence (under the Defamation Act 2013) requires the Court to adapt to the circumstances of the individual case, which means it must look at the subject-matter and, importantly, the role of the defendant who relies on the defence.

It was therefore important to take into account Mr Freitas' role as the father of a young woman who had killed herself. In this context, the Defendant's belief that the publications were in the public interest was held to be 'reasonable' because he reasonably believed he was raising issues of public importance, he was in a unique position to raise them as a first-hand observer and, as the father of the woman, he had sufficient information to form a view on the conduct of the CPS.

Warby J emphasised that the judgment did not seek to negate Mr Economou's innocence of the rape allegations first made against him. However, he also highlighted that the Defendant's words in the publications were aimed at the CPS, not Mr Economou.

Comment

This judgment indicates that the public interest defence under the new Defamation Act will place emphasis on the specific circumstances of each case and, in particular, the role of the Defendant in deciding to publish the words complained of. Warby J made it clear that there was a distinction between the Defendant, as the father who had lost a child, and a journalist, whose reasons for pursuing publication would be different.

The case also raises important issues for reputation management. Being accused of a sexual crime is, of course, one of the most damaging accusations that can be made against an individual and, if that allegation is false, he or she will want to do all in their power to fight it. However, this case, like the litigation brought by Freddie Starr, should be a warning against taking such robust action when doing so may harm your reputation further. In pursuing a libel case against the Defendant, Mr Economou has found his name at the centre of a widely publicised libel judgment. The particular sensitivities of this case also called for thoughtfulness when Mr Economou was deciding how to deal with the allegations that had been made against him.

Perhaps it would have been more prudent to take action against the publishers of the story, rather than a grieving father.

If you require further information on anything covered in this briefing please contact Oliver Lock ([email protected], 020 3375 7201) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Defamation and Reputation Management page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2016