QB-2022-002648 - [2025] EWHC 2565 (KB)

Publication on matter of public interest

It was common ground between the parties that, when considering a defence under s4, there are three questions to be addressed (see Economou v de Freitas [2019] EMLR 7, Sharp LJ at [87]): (1)  Was the statement complained of, or did it form part of, a statement on a matter of public interest? (2) If so, did the defendant believe that publishing the statement complained of was in the public interest? (3) If so, was that belief reasonable?

The first issue is an objective question for the court, and is not disputed in the present case.

The second issue concerns the Defendant’s state of mind at the time of publication. They must prove that they believed that publication was in the public interest. A failure to do so means the defence will fail. See Doyle v Smith [2019] EMLR 15, Warby J at [75]-[76]; Harcombe v Associated Newspapers Ltd [2025] 1 WLR 405, Nicklin J at [274].

If the Defendant establishes that they did believe that publication was in the public interest, the final question is whether, judged objectively, that belief was reasonable.

As Nicklin J pointed out at [275] in Harcombe, the Code of Practice of the Independent Press Standards Organisation (“IPSO”) contains the following provision: “Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication - would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time”. (In the present case, the Defendant stated at [23] of his witness statement for trial that “I have followed the journalistic code of conduct to the best of my abilities in these publications”. Further, it is clear that the lack of professional skill, training, or expertise of a “citizen journalist” is not a relevant circumstance for the purposes of s4: Doyle v Smith [2019] EMLR 15, Warby J at [95]-[96].)

In assessing the second and third issues, contemporary documents are likely to be important. This is because the best guide to the truth is often to be found not so much in the demeanour of the protagonists, or even concessions made in cross-examination, but in the contemporary documents and in an objective appraisal of the probabilities overall. These matters were discussed more fully in Gestmin SGPS SA v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm), in which Leggatt J (as he then was) considered not only the fallibility of memory but also the difficulties to which the process of civil litigation gives rise, before concluding at [22] as follows:

“In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

In the present case, the potential importance of contemporary documents is underlined by a number of considerations which make the appraisal of oral evidence more difficult. First, the material events happened more than three years ago.Second, this is a case in which feelings run high, and in which individuals have entrenched positions. In cases having these features, there is a particular risk that a witness may be honest but mistaken about what took place, and may give evidence about what they would like to think happened rather than what they can truly recollect. Third, as Sir Thomas Bingham wrote in “The Judge as Juror: the Judicial Determination of Factual Issues”, (1985) 38 CLP 1, at 10-11:“… however little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when… the witness belongs to some other nationality…  To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.” Finally, not only were both the Claimant and the Defendant former officers with extensive intelligence and army experience, from which I believe that it is reasonable to infer – and certainly this was my impression - that they were each likely to have a resolute disposition under the relatively tame fire of cross-examination, but in addition the Defendant and two of his witnesses gave evidence remotely, which did not assist me in the task of assessing their demeanour.

These points apply in the context of s4. In Harcombe, Nicklin J said at [276]: “The lack of … documents recording, and evidencing, the decision-making process prior to publication, can harm the prospects of success of a public interest defence. That is because, without records of what steps the journalist took prior to publication, and what documents s/he had and considered, it is unrealistic to expect him/her to have a reliable recollection of the detail of the steps taken and information that had been obtained pre-publication”.

Further, at [277] in Harcombe, Nicklin J referred to his earlier judgment in Lachaux v Independent Print Ltd [2022] EMLR 2, in which he said (among other things) at [122] “.. as the burden of establishing a public interest defence under s4 … lies upon the defendant, a defendant seeking to prove that s/he reasonably believed that publishing the statement complained of was in the public interest is likely to find that the prospects of success are enhanced by being able to produce contemporaneous records of the decision(s) taken” and at [124]: “The Court may ultimately disagree with the journalist’s assessment that it was in the public interest to publish, but contemporaneous documents will at least assist the journalist in being able to demonstrate his/her thought processes at the time …”.

Nicklin J provided the following helpful summary of the applicable case law in Harcombe at [279]-[283] (citations largely omitted):

“279.

In assessing the reasonableness of a defendant’s belief that publication was in the public interest, the focus is on the things the defendant said or knew or did, or failed to do, up to the time of publication. Events that post-date publication are unlikely to have any real bearing on the issue. "Could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?".

280.

When determining the reasonableness of a defendant’s belief that publication was in the public interest, the Court must "make such allowance for editorial judgement as it considers appropriate": s4(4). In Banks v Cadwalladr [2022] 1 WLR 5236, Steyn J summarised the principles that emerge from the authorities on this point:

[112] The importance of giving respect, within reason, to editorial judgment is relevant when considering the tone and content of the material and the nature and degree of the steps taken by way of verification prior to publication.

[113] It is important to consider the process and the publication in the round. As Lord Mance noted in Flood, in Bonnick v Morris [2003] 1 AC 300 the journalist had fallen short both in not making further inquiries about the anonymous source and in not including the claimant’s explanation, but the Privy Council was "prepared to overlook some respects in which the journalist's conduct could legitimately be criticised" in reaching an overall judgment as to the availability of the public interest defence ([130]). Lord Mance continued at [131]:

“The need to look at the position in the round was also identified by Lord Bingham in Jameel [34] when he disclaimed too close a focus on particular ingredients which have (or have not) been included in a composite story. He said: ‘This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.’”

[114] Journalistic freedom covers possible recourse to a degree of exaggeration or even provocation. It is well established that this is something the court must tolerate. It is not for the court to substitute its views for those of journalists as to what techniques of reporting should be adopted.

281.

An issue that arises frequently when considering a public interest defence is the approach the Court should adopt to the meaning of the publication. It is well-established that the public interest defence is not to be assessed simply by reference to the single natural and ordinary meaning of the publication. In Riley v Murray [2023] EMLR 3, Warby LJ explained:

[82]   ... In Bonnick, Lord Nicholls said at [24] that a journalist should not be penalised for making a wrong decision on a question of meaning on which people might reasonably take different views. But he went on at [25] to say that this "should not be pressed too far". 

“In the normal course a responsible journalist can be expected to perceive the meaning an ordinary reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article”.

In Banks Steyn J, DBE applied these observations in the context of the s4 defence. At [123] she summarised her analysis in this way:

“A defamatory meaning should not be ignored by a journalist if it is 'obviously one possible meaning' ([25]) or 'glaringly obvious' ([27]); to do so would not be reasonable. But if that threshold is not reached, the reasonable belief of a journalist who did not perceive the more damaging meaning falls to be assessed by reference to the less damaging meaning”.

[83]   It may be that these principles do not transpose directly into a situation such as the present, but I do not think the defendant can reasonably argue for any more generous test. She has never done so. She has not addressed the issue. The defendant’s argument has always been that her conduct should be assessed exclusively by reference to what she reasonably believed the GAT to mean, and that on that footing it was reasonable for her to believe that it was in the public interest to publish the Factual Allegation and the Opinion. That, in my view, is simplistic and wrong. When assessing the reasonableness of a belief that it is the public interest to denounce a person as dangerous and stupid for what they have said in a public statement, it must be relevant that the statement has an obvious alternative and lesser meaning which is not worthy of such denunciation. Here, the Judge was entitled to conclude that the defendant ought reasonably to have appreciated that the GAT could also be interpreted as conveying the hypocrisy meaning and that it was therefore unreasonable for her to believe that presenting the position unambiguously, as she did, was in the public interest.

[84]   This approach seems to me consistent with one strand of the authorities to date, which is that "a belief [is] reasonable for the purposes of s.4 only if it is one arrived after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case"… endorsed by the Supreme Court as "no doubt helpful" …

[85]   I see no inconsistency with my judgment in Yeo, aspects of which are relied on by the defendant. In the passages relied on, at [175] and [179], I said that in a case such as that one "it will be 'fair' to present readers with factual conclusions honestly and reasonably drawn by journalists who were themselves witnesses to the key events; it is permissible to summarise, and to be selective; ... fairness does not require the publisher to present the reader with all the factual material that could support a competing assessment ... it is not incumbent on the responsible journalist to lay out for the reader all the pros and cons relevant to a particular conclusion". Yeo was very different from this case. It was a decision on the application of the Reynolds defence to newspaper reports of an undercover journalistic investigation of a leading politician. But I also said (at [175]) that "if the evidential picture is misrepresented or presented in a wholly unbalanced way, that may well be unfair". Here, the Judge found that the evidential picture had been unreasonably misrepresented.”

282.

The Court must have regard to all the circumstances of the case: s4(2). Although s4(6) has abolished the old Reynolds defence (Reynolds v Times Newspapers Ltd [2001] 2 AC 127), the rationale for the statutory defence was not materially different and the common law principles remained relevant to the interpretation of the statutory defence … The ten so-called Reynolds factors - although not to be regarded as any sort of checklist - "may well be relevant to whether the defendant's belief was reasonable within the meaning of subsection 1(b)"… In Hijazi -v- Yaxley-Lennon [2021] EMLR 7 [24], I noted:

“... At the stage of the assessment as to what information the defendant had and what inquiries s/he made, Lord Nicholls’ third to fifth factors are likely to remain valid in many cases:

‘3. The source of the information. Some informants have no direct knowledge of the events. Some may have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.’”

283.

A factor, identified by Lord Nicholls, which remains relevant to the assessment of any public interest defence, is the extent to which the defendant attempted to verify the allegations it intends to make. Save in cases of neutral reportage (under s.4(3)), efforts to verify are usually regarded "as an important factor in the assessment of the reasonableness of a defendant's belief that publication was in the public interest" … In Lachaux, I explained:

[134] It is also clear … as endorsed by Lord Wilson in Serafin [69], that providing they are not treated as any sort of 'checklist', the Reynolds factors will remain potentially relevant when assessing whether a defendant's belief that publication was in the public interest was objectively reasonable. Lord Wilson traced the legislative history of s.4 through the post-Reynolds authorities in [57] to [59], and observed in [60]:

“In [Flood -v- Times Newspapers Ltd [2012] 2 AC 273] ..., the defendant published an article taken to mean that there were reasonable grounds to suspect that the claimant, a police officer, had corruptly taken bribes. The allegation was false. This court held that the defendant nevertheless had a valid defence of public interest. Lord Phillips of Worth Matravers, the President of the court, said at [26] that in that case analysis of the defence required particular reference to two questions, namely public interest and verification; at [27] that it was misleading to describe the defence as privilege; at [78], building on what Lord Hoffmann had said in the Jameel case at [62], that the defence normally arose only if the publisher had taken reasonable steps to satisfy himself that the allegation was true; and at [79] that verification involved both a subjective and an objective element in that the journalist had to believe in the truth of the allegation but it also had to be reasonable for him to have held the belief. Lord Brown at [113] chose to encapsulate the defence in a single question. 'Could', he asked, 'whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?'. Lord Mance at [137], echoing what Lord Nicholls had said in the Reynolds case at p.205, stressed the importance of giving respect, within reason, to editorial judgement in relation not only to the steps to be taken by way of verification prior to publication but also to what it would be in the public interest to publish; and at [138] Lord Mance explained that the public interest defence had been developed under the influence of the principles laid down in the European Court of Human Rights." 

[135] As Lord Wilson noted ([66]), the Explanatory Notes to the Defamation Act 2013 stated that the intention behind s.4 was to: “reflect the common law as recently set out in the Flood case and in particular the subjective and objective elements of the requirement now both contained in subsection 1(b)”.

[136] In [60], Lord Wilson referred to Lord Brown's question from Flood. To similar effect, in Economou [2017] EMLR 4 [241], Warby J held:

“I would consider a belief to be reasonable for the purposes of section 4 only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”.

This statement was approved by Sharp LJ in Economou [101] and by the Supreme Court in Serafin [67]. See also Warby J’s observations as to reasonableness of belief in Economou [239].

[137] The requirement in s.4(3), in cases of neutral reportage, that the Court should disregard any omission by the defendant to take steps to verify the truth of the imputation conveyed by the statement complained of, is an implicit recognition that efforts to verify will usually be regarded as an important factor in the assessment of the reasonableness of a defendant's belief that publication was in the public interest. That is not to say that a failure to verify will necessarily lead to the s.4 defence being rejected; everything depends upon the particular circumstances of the case. However, recognition of the general importance - outside neutral reportage - of steps taken to verify defamatory allegations is consistent with both domestic and Convention jurisprudence.

[138] In Flood, Lord Phillips explained why neutral reportage justified a journalist being relieved from the normal obligation to verify:

[77]   ... Reportage is a special, and relatively rare, form of Reynolds privilege. It arises where it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. It protects the publisher if he has taken proper steps to verify the making of the allegation and provided that he does not adopt it. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 was analogous to reportage because it was the fact that there were names of substantial Saudi Arabian companies on the black list that was of public interest, rather than the possibility that there might be good reason for the particular names to be listed. Just as in the case of reportage, the publishers did not need to verify the aspect of the publication that was defamatory. 

[78]   The position is quite different where the public interest in the allegation that is reported lies in its content. In such a case the public interest in learning of the allegation lies in the fact that it is, or may be, true. It is in this situation that the responsible journalist must give consideration to the likelihood that the allegation is true. Reynolds privilege absolves the publisher from the need to justify his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it. Lord Hoffmann put his finger on this distinction in Jameel [62] when he said 

“In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.”

[79]   Thus verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the allegation that he publishes is true. And his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold. What then does the responsible journalist have to verify in a case such as this, and what does he have to do to discharge that obligation? If this were a Chase level 1 case he would have to satisfy himself, on reasonable grounds, that the claimant had in fact been guilty of corruption. His defence would not "get off the ground" unless he reasonably believed in the claimant's guilt. This is not, however, a Chase level 1 case...”

[139] In Axel Springer AG v Germany [2012] EMLR 15 [82], the Grand Court held, under the heading “Limits on freedom of expression”:

“However, art.10(2) of the Convention states that freedom of expression carries with it 'duties and responsibilities', which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the 'rights of others'. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations …”

[140] Similarly, from Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (“Loutchansky”):

“[41]   The Court observes that the most careful of scrutiny under art.10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern …The Court further recalls that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive …

[42]   However, the Court reiterates that art.10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by art.10(2). These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals. Furthermore, the protection afforded by art.10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism …

[141] A key feature of Mr Price QC’s submissions is that the articles were reporting, rather than adopting, the allegations made by Afsana. In the case of the Standard Article, he relies particularly on the fact that there was an express statement at the end of paragraph [4] that the allegations of domestic violence had not been tested in court and were denied by the Claimant. Rightly, he has referred to the well-known statements of principle, from the jurisprudence of the European Court of Human Rights, emphasising the importance in not fettering the media’s ability to report on matters of public interest. By way of recent example from the ECtHR’s decisions, in Ólafsson v Iceland (2018) 67 EHRR 19 [56] (with footnotes omitted):

“The Court further reiterates that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas, and that ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’.”

[142] This principle cannot be seen in isolation and needs to be properly understood in the context of Convention jurisprudence (particularly the importance attached, usually, to verifying defamatory allegations recognised in Axel Springer and Loutchansky). Seen in that context, it does not support a contention that, where a publisher is reporting allegations made by others, which can damage the reputation of another, a publisher is relieved of the onus to observe what the ECtHR has referred to as the “ordinary journalistic obligations”: Ólafsson [57]. 

[143] Publishers have at their disposal a variety of reporting techniques. For example, those who are unable or unwilling to take steps to verify defamatory allegations, and who wish potentially to rely upon a public interest defence to defend their publication, may well have to adopt a reporting technique that reduces the overall defamatory impact (for example the inclusion of statements that are effective in indicating that the publisher is not adopting the allegations). Alternatively (where the circumstances permit), the publisher might be able to present the allegations as part of an accurate and impartial account of a dispute to which the claimant was a party. In that latter respect, although the publisher is likely, by reason of s4(3), thereby to be relieved of the need to take steps to verify the allegations, s/he will nevertheless be required to obtain and publish the other side of the dispute. These are examples to demonstrate the sort of issues that a publisher is likely to have to consider when deciding what technique of reporting is chosen. Difficult questions of judgment may arise, for example, the extent to which it is necessary to include defamatory allegations against others in an article which otherwise makes a significant contribution to a matter of public interest. If a journalist or publisher can demonstrate that s/he has carefully considered the necessity for, and proportionality of, the harm to the reputations of those included in the publication, then a Court is likely to accord due weight to that assessment. Ultimately, in each case where a defendant relies upon a defence under s4, the Court has to make an assessment of all the circumstances and to make due allowance for proven exercise of editorial judgment.”

Mr Harding made reference to the remainder of Lord Nicholls’ factors in Reynolds (viz. “1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.”). Mr Harding also relied on Lord Nicholls’ observations in Reynolds at p205: “Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”