Defamation Law: Can I Continue to Publish Defamatory Material That’s in The Public Interest?
Defamatory material can continue to harm an individual’s reputation while it remains online or where traditional media (newspapers etc.) continue to be circulated. Before the introduction of section 8 of the Defamation Act, 2013 someone who posted defamatory material online could effectively face indefinite liability. That’s because the law considered that each time the online material was accessed, a fresh defamatory publication occurred – and a new legal claim theoretically arose. Under section 8 however, the single publication rule means that a defamation action may only be brought within 12 months from the date of first publication of the offending material. Of course, no successful action for defamation will be brought if the material complained of is defensible i.e. one of the defamation defences applies.
Here we look at what is involved when you want to mount a public interest defence to potentially defamatory material, and we examine two important cases where the public interest defence failed and issues of continued publication of defamatory material arose.
Is Publication In The Public Interest?
One way defamatory content can be justified to a court is if you can demonstrate that publication is in the public interest. We have looked at this before in the context of journalist Carole Cadwalladr’s public interest defence against Brexiteer Arron Banks. Essentially, to justify the publication of defamatory content, defendants may attempt to rely on the defence of public interest under section 4 of the Defamation Act 2013. To establish a defence of public interest, defendants must show that the statements made are a matter of public interest and that they reasonably believed this. Based on the facts of each case, courts will be required to decide whether priority should be given to Article 12 of the Human Rights Act (HRA), the right to freedom of expression, or to the protection of the reputation of others.
Loutchansky v Times Newspapers Ltd and Others [2001]
Here, Times Newspapers posted an article alleging that Mr Loutchansky a Russian-Israeli businessman was the boss of a criminal organisation involved in money laundering and weapon smuggling. The Times argued that it had behaved responsibly when it published the defamatory article about Mr Loutchansky and relied on the defence of public interest. And because the article had been posted more than 12 months before proceedings were issued the paper also argued that the case had been brought outside the one-year limitation period for defamation proceedings so that it was statute barred. (This would have seen a reliance on the single publication rule mentioned above).
The judges held that the defence of public interest was not applicable. They found that the defendants knew that they were not in a position to justify the articles when they published them. The information contained in the articles came from sources which could not be relied upon, and as a result, the defendants could not reasonably or honestly have suspected that their suspicions were justified.
The judges also dismissed the Times’ arguments around the single publication rule. Judges weighed up the right to freedom of expression against the protection of the reputation of individuals. On the facts of the case the court could not accept that it would be proportionate to enforce the single publication rule. As the defendants had failed to remove or amend the defamatory material, it was decided that the continued publication of the articles could not be justified.
The court did observe however that where older content may be defamatory, the attachment of an appropriate notice warning against treating the content of the article as the truth can remove the ‘sting’ of the material.
Lachaux v Independent Print Ltd and another [2021]
The Lachaux litigation ran over several years and involved several defendant publications where allegations that the claimant M. Lachaux, a French citizen, had abused his wife and unlawfully obtained custody of his son. The 2021 High Court decision focused on the public interest defence put forward by the Independent and one other publication, and on the issue of the continued publication of the articles albeit in amended form in light of related decisions in the case. The judge considered the issues at three separate points in time:
1. At the time of publication. The judge found that the defence of public interest failed here because the defendants had failed to ask the claimant for a response regarding the allegations and had therefore, in a similar way to the defendants in Louchansky, failed to act responsibly at the time the defendants received the letter of complaint from the claimant.
2. At the time the defendants received the letter of complaint from the claimant. The judge also found that the defence of public interest failed here. Although the defendants had made amendments to the articles to include links to other articles which stated that the claimant denied the allegations against him, these amendments were found to be insufficient.
3. At the time of judgement. Finally, at the time of judgement, the judge found that the defence of public interest still failed here. By this point the defendants had briefly taken down the articles, amended them with paragraphs at the top referring to a judgement which rejected the allegations made about the claimant and provided a link to the report, before putting the articles back up. The judge found however, that the structure of the articles had not changed, and the reasonable reader would be confused as to what the articles were suggesting. These amendments were therefore still insufficient.
Comment
The Lachaux case demonstrates how the publishers of an article are not only required to act responsibly when they take the decision to publish but, following on from what was discussed in Loutchansky, are also required to consider significant changes to their articles and amend them in an appropriate way to justify their continued publication. As the defendants could not rely on the defence of public interest, an injunction was granted to have the articles removed from their websites and to prohibit the defendants from publishing further words bearing the meanings decided by the court. Mr Lachaux was also awarded £120,000 in damages.
These cases assist in demonstrating how an individual may have a case against a publisher regarding the continued publication of defamatory material about them. In order to rely on the defence of public interest, a publisher must act responsibly and reasonably believe that the publication of content is justified. That responsible behaviour must continue throughout the continued publication of content and publishers are expected to take adequate steps in amending said content, taking into account any significant changes in circumstances they may become aware of. Failure to comply and act in such a manner can result in an order for the infringing publication to be removed and restrictions being placed on what the publisher may publish in the future.
Contact Us
For advice on defamation and reputation management please contact Shubha Nath at Nath Solicitors on 020 3983 8278 or contact us by emailing us at info@nathsolicitors.co.uk
