There are several ways to defend a defamation claim. You can argue that the alleged defamatory statement is true or that it that it is privileged for example. You can also defend the claim on the grounds that the statement was made in the public interest. In the 2020 case of Serafin v Malkiewicz the Supreme Court provided useful guidance on how to establish the public interest defence in a defamation case.
Here we look at the case and consider its implications.
The Supreme Court recently ordered a re-trial of a defamation claim brought by Mr. Jan Serafin a builder and food importer. His claim was against the editors of a Polish language magazine in which an allegedly defamatory article about him appeared suggesting dishonesty and financial irregularity on Mr. Serafin’s part.
Initially, Mr. Serafin’s claims were dismissed by the High Court. The judge’s decision made clear that the defendant newspaper was entitled to rely on the public interest defence (in section 4 of the Defamation Act, 2013) because the editors there believed that publishing the article was in the public interest.
The judge also decided that even if that defence were not available Mr. Serafin would not have succeeded in his action for damages. That was because he had not proved that he had suffered ‘serious harm’ as a result of the article. According to the judge Mr. Serafin’s reputation was ‘shot to pieces’ by other aspects of the article that had been shown to be substantially true.
The Claimant went on to successfully appeal this decision – the Court of Appeal ruled against the application of Section 4 of the Defamation Act 2013 and overruled the High Court judge’s decision that the allegedly defamatory statements complained of were not capable of causing serious harm to Mr. Serafin. The Defendants appealed this decision to the Supreme Court.
The Supreme Court ruled that the public interest defence was, in fact, available to the defendant publishers. Delivering the court’s judgment Lord Wilson referred to the fact that the Court of Appeal had viewed the section 4 public interest defence contained in the Defamation Act 2013 and the so-called Reynolds defence (the test for a public interest defence used before the introduction of the 2013 Act) as essentially the same. The Court of Appeal had used the Reynolds 10 part test as a checklist to see whether or not the conditions of section 4 of the 2013 Act had been met. In the Supreme Court’s view, this was a mistake. Instead, the court should apply the two-pronged test in section 4 objectively without any reference to the Reynolds checklist. Section 4 states:
It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest
That was not the end of the story. On a separate issue from the public interest defence question, the Supreme Court endorsed the Court of Appeal’s view that the High Court trial had been unfair to the defendant. However, it went further than the Court of Appeal and ruled that a completely new trial should be held. (The Court of Appeal had only ordered that damages to the defendant should be reassessed in light of its unfair trial finding).
So the whole of Mr Serafin’s case –including his arguments against the public interest defence – will now be reheard at a later date.
Publishers faced with defamation claims will welcome the Supreme Court judgment. The Reynolds test is viewed as a much more onerous test to satisfy than the test in section 4 of the Defamation Act. The Supreme Court in effect has made it easier for publishers to argue that alleged defamation is justified in the public interest.
At Nath Solicitors, we provide comprehensive advice to defendants and claimants in defamation actions. For further advice please contact our director Shubha Nath on 44 (0) 203 670 5540 or use the covid19 emergency contact form to get in touch.
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