KB-2022-003483 - [2025] EWHC 1912 (KB)

As material, section 4 of the 2013 Act provides:

“(1)

It is a defence to an action for defamation for a 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.

(2)

Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

.....

(4)

In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgment as it considers appropriate.

(5)

For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.

(6)

The common law defence known as the Reynolds defence is abolished.”

A defendant bears the burden of proving this defence on a balance of probabilities. As identified by Nicklin J at para 138(ii) in Turley, when considering whether the defendant has established this defence, there are three questions to be addressed:

The principles relating to the third element of the defence were summarised by Steyn J at para 130 in Riley. The passage makes reference to: Reynolds v Times Newspapers [2001] 2 AC 127 (“Reynolds”); Economou v De Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4 (Warby J, as he then was) and [2018] EWCA Civ 2591; [2019] EMLR 128 (“Economou”); Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455 (“Serafin”) and to the decision of Nicklin J at first instance in Lachaux at [2021] EWHC 1797 (QB); [2022] EMLR 32. As relevant to the present case, Steyn J said:

“iii)

The court should take a fact-sensitive and flexible approach, having regard to practical realities. One or more of the ten illustrative factors identified by Lord Nicholls in Reynolds, 205A-D (‘the Reynolds factors’) may well be relevant, but those factors should not be used as a checklist.

iv)

The public interest defence reflects the appreciation that a journalist is not required to guarantee the accuracy of their facts. The truth or falsity of the defamatory statement is not one of the relevant circumstances to which the court should have regard in assessing whether s.4(1) is met; it is a neutral circumstance. On the other hand, whether the journalist believed a statement of fact they published to be true, at the time of publication, is relevant ... Indeed, a journalist who has published a statement of fact which they did not believe to be true is unlikely to be able to show that they reasonably believed publication was in the public interest.

v)

Efforts to verify the statement complained of ‘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’: Lachaux, Nicklin J, [137. In Economou, in a statement approved by the Court of Appeal at [101] and by the Supreme Court in Serafin, [67], Warby J observed at [241]:

‘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.’

vi)

A failure to invite comment from the claimant prior to publication will ‘no doubt always at least be the subject of consideration under subjection (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of that defence’. But an invitation to comment cannot be described as a ‘requirement’ of the s.4 defence: Serafin, Lord Wilson, [76].” (Text italicised in the original.)

At para 131 Steyn J continued:

“When addressing the third question, the court is required to make such allowance for editorial judgment as it considers appropriate (s.4(4) of the 2013 Act). 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. Even if the court considers that the journalist has fallen short in some respects, it is important to consider the process and the publication in the round, reaching an overall judgment as to the availability of the public interest deference. It is well established that the court must tolerate recourse to a degree of exaggeration or even provocation on the part of a journalist. See Banks, [112]-[114] and the authorities cited therein.”

And at para 133 she observed:

“Section 4 of the 2013 Act has to be interpreted and applied in conformity with the parties’ respective rights under articles 8 and 10 of the European Convention on Human Rights, although those rights do not give rise to any separate and distinct issues to those which fall to be determined pursuant to s.4 of the 2013 Act. The special importance of expression in the political sphere, a freedom which is at the very core of the concept of a democratic society, is well recognised; and the concept of political expression is a broad one. The limits of acceptable criticism are wider in respect of political expression concerning politicians and other public figures ... On the other hand, as Lord Nicholls observed in Reynolds at 201A-C:

‘Reputation is an integral and important part of the dignity of the individual ... Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser ... Protection of reputation is conducive to the public good. It is in the public interest that reputation of public figures should not be debased falsely.’”

At para 134, Steyn J observed that the same standards apply to “citizen journalists” as are expected of professional journalists, citing Doyle v Smith [2018] EWHC 2935 (QB),[2019] 15, Warby J at paras 81 and 95 - 96.