In Serafin v Malkiewicz  UKSC 23 The Supreme Court has approved a fundamental change in the way in which the s.4 public interest defence operates, effectively lowering the threshold at which the defence is engaged and swinging the pendulum towards freedom of speech.
Lord Wilson (with whom the four other Justices of the Supreme Court agreed unanimously) expressly disapproved the Court of Appeal’s approach to the s.4 defence, albeit in very courteous terms.
In a masterful exposition on the approach to construing a statute, Lord Wilson tracked the history and progress of s.4 through parliament, drawing on preceding case law to explains its common law origins, the underlying legislative purpose and Hansard.
One of the key issues in contention is the extent to which publishers should verify information contained in an article before publication.
The key take-home points are:
- The first question to be asked in whether what was published was on a matter of public interest (as opposed to a matter in the public interest).
- The test is not one of responsible journalism. The test is whether the journalist reasonably believed that the statement complained was in the public interest.
- There is more focus on the subjective element of the journalist’s reasonable belief at the time.
- The objective element is whether the journalist’s belief was a reasonable one to hold.
- When considering whether a belief is reasonable, it is only if it is reached after conducting such enquiries and checks as it is reasonable to expect of the particular journalist in all the circumstances of the case.
- The Court will make such allowance for editorial judgment as it considers appropriate.
- Having regard to all the circumstances of the case indicates that the defence should be applied in as flexible a way as possible in light of the circumstances.
- There should be greater flexibility when using the Reynolds factors.
- The Reynolds factors should not be construed as a code.
- The Reynolds factors should not be used as a checklist.
- One or more of the Reynolds factors may well be relevant to whether the defendant’s belief was reasonable.
- A failure to invite comment from the subject of an article prior to publication will no doubt always at least be the subject of consideration as to whether the journalist reasonably believed that the statement complained was in the public interest and may contribute to or even form the basis of a conclusion that the defence has not been established. But it is not a requirement.
What does this all mean?
- A failure to invite comment is not necessarily fatal to the defence.
- The extent of the enquiries and checks before publication are particular to the journalist involved and the circumstances of the case.
- There will be more focus on the subjective belief of the journalist.
The net effect is that claims for defamation will be more difficult to bring. This may well have a chilling effect on claims being brought under a Conditional Fee Agreement (CFA) and the numbers of claim being brought.
Dr Anton van Dellen acted for the Appellants, together with David Price QC and Anthony Metzer QC