Alexander Economou v David De Freitas
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWHC 1853 (QB) |
| Docket Number | Case No: HQ15D01507 |
| Court | Queen's Bench Division |
| Date | 27 July 2016 |
[2016] EWHC 1853 (QB)
Mr Justice Warby
Case No: HQ15D01507
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Barnes & Gervase de Wilde (instructed by Fieldfisher) for the Claimant
Manuel Barca QC & Ian Helme (instructed by Hanover Bond Law) for the Defendant
Hearing dates: 13–17, 20, 22 June 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| INDEX | |
| Section | Paragraphs |
| INTRODUCTION | 2–7 |
| THE CAUSE OF ACTION ISSUES | 8 |
| Legal Principles | 9–19 |
| Relevant factual background | 21–39 |
| The November publications | 40–56 |
| Discussion | 57–97 |
| The December publications | 98–109 |
| Discussion | 111–130 |
| Summary of Conclusions on the Cause of Action Issues | 131–135 |
| THE PUBLIC INTEREST DEFENCE | 136 |
| The Law | 137 – 142 |
| Issues | 143 |
| Matters of Public Interest | 144–152 |
| Belief that Publication was in the Public Interest | 152–161 |
| Reasonable Belief: the facts | 162–238 |
| Discussion and conclusions | 239–261 |
| OVERALL CONCLUSIONS | 262 |
INTRODUCTION
The factual background to this libel case has been aptly described as "striking and tragic".
The defendant is the father of the late Eleanor de Freitas. In December 2012 Ms de Freitas had a relationship with the claimant, Mr Economou. In January 2013 she accused him of rape. He was arrested, but never charged. In August 2013 he started a private prosecution against her alleging that she had accused him falsely, with intent to pervert the course of justice. The prosecution was taken over by the Crown Prosecution Service, who continued it. Ms de Freitas denied the charge. Four days before the trial date in April 2013 Ms de Freitas, who suffered from bipolar affective disorder, killed herself.
Mr de Freitas wanted the inquest into his daughter's death expanded to include an examination of the role of the CPS. The coroner initially ruled against this, but indicated he was prepared to hear argument on the matter. Mr de Freitas was advised to raise the issues publicly. As a result, in November and December 2014 he issued or authorised the issue of press statements, gave radio and TV interviews, and wrote an article himself. Articles appeared in newspapers and the BBC broadcast two items containing interviews with Mr de Freitas.
Mr Economou complains of libel in the two BBC broadcasts, and in five newspaper articles: four in The Guardian and one in The Daily Telegraph. None of these publications named Mr Economou but he contends that he could be, and was, identified as the subject of the words complained of. The meanings which he attaches to the various publications complained of differ in their detail, but the essence of his complaint is that he was accused of having falsely prosecuted Ms de Freitas for perverting the course of justice by accusing him of rape, when the truth was that he had raped her.
The truth or falsity of such allegations is not one of the issues at this trial, and nothing in this judgment should be read as a finding, or as expressing a view, one way or the other on that issue. There are five main issues as to liability: (1) whether Mr Economou was referred to by the publications complained of ("Identification"); (2) in one instance, whether Mr de Freitas is responsible for the publication complained of ("Responsibility"); (3) what if any defamatory meaning about Mr Economou was conveyed by the words for which Mr de Freitas is responsible ("Meaning"); (4) whether the publication of the statements complained of caused serious harm to Mr Economou's reputation ("Serious Harm"); and (5) whether Mr de Freitas is entitled to rely on the statutory defence for publication on a matter of public interest ("the Public Interest defence").
The burden of proof on each of the first four issues ("the Cause of Action Issues") lies on Mr Economou. If he succeeds in showing a cause of action, the burden shifts to Mr de Freitas to establish the Public Interest defence. If Mr de Freitas fails in that, the issue of damages arises.
There is relatively little overlap between the evidence relevant to the Cause of Action Issues and the evidence that goes to the Public Interest defence. The latter is voluminous. It is convenient to deal with the Cause of Action Issues first.
THE CAUSE OF ACTION ISSUES
Legal principles
The relevant legal principles are matters of common law except for Serious Harm, which is an issue that arises from section 1 of the Defamation Act 2013 ("the 2013 Act"). The following key points are not in dispute.
(1) Identification
"It is an essential element of the cause of action for defamation that the words complained of should be published 'of the [claimant]'": Knupffer v London Express Newspaper Ltd [1944] AC 116, 118. This does not mean that defamatory words that do not name the person to whom they refer are immune from action for libel. A person may be libelled without being named. There may be some other way in which readers would identify the claimant as the person to whom the words complained of refer. The question in all cases is whether reasonable people would understand the words to refer to the claimant: Gatley on Libel & Slander, 12 th ed (2013) para 7.1.
This can be the case because of some feature or features of the words themselves. They may, for instance, contain a description sufficient to lead reasonable people who know the claimant to identify him or her as the person referred to. Or it may be that there are extrinsic facts and matters, known to some readers, which would lead a reasonable person to identify the claimant as the person referred to: see, eg, Morgan v Odhams Press Ltd [1979] 1 WLR 1239. This last situation is commonly referred to as involving a "reference innuendo". The comparison is with a "true innuendo" meaning of words: one that arises only in the mind of a person who knows "special facts", which are not matters of common knowledge. As a rule, the cause of action must be complete at the time of publication; a claimant cannot rely on facts that occur, or knowledge that is acquired by readers, after the time of publication to support a reference innuendo: Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822. A limited exception to this rule was recognised in Hayward v Thompson [1982] QB 47, CA: a publisher may be liable where it defames an unnamed person who is identifiable to a small number, but later identifies that person to its readers generally.
The test that I have described is an objective one, which does not depend in any way on what the defendant knows or intends will happen: see Morgan v Odhams Press (above) and Baturina v Times Newspapers Ltd [2011] EWCA Civ 308, [2011] 1 WLR 1526, where Morgan and other well-known earlier authorities are reviewed. Some suggest that there is a subjective element, in the sense that a claimant has to prove that there were people who did in fact understand the words to refer to him. I do not believe this is the law: see Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), [2016] QB 402 [15] and Undre v Harrow LBC [2016] EWHC 931 (QB) [24–26], [31]. In Baturina the majority expressed the view that such evidence was not even admissible: see [56] (Sedley LJ) and [57] (Hooper LJ). This was obiter, but consistent with the view I take as to the objective nature of the test. It would not matter in this action, as the claimant's case does rely on evidence or inference of actual identification, as will normally be the position now that claimants have to prove Serious Harm.
(2) Responsibility
A defendant will of course be held legally responsible for a communication which he personally made. He may also be responsible for the republication in the media of such a statement. Conventionally, those who write or speak to the media with a view to their words being re-published in the media are said to have "caused" or "authorised" such republication, and are responsible on that basis. A person will also be responsible for statements which he authorises others to make to the media on his behalf, with a view to re-publication. That is the way Mr Economou puts his case against Mr de Freitas in this action. He complains of words which he says Mr de Freitas spoke or wrote, or authorised others to write, to the media for publication in the media. He does not seek to hold Mr de Freitas responsible for any of the other matter which the media organisations concerned included in the articles and broadcasts that are complained of.
(3) Meaning
It is an essential ingredient of any defamation claim that the statement complained of is defamatory of the claimant. At common law a statement is defamatory of a person if it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [96] (Tugendhat J). Whether that is so normally depends on the natural and ordinary meaning of the words.
In defamation law a given set of words can have only one natural and ordinary meaning. The principles by which the court identifies that single meaning are well-settled. Most are encapsulated in the summary given by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]:
"(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a...
To continue reading
Request your trial
-
Mamadou Sakho v World Anti-Doping Agency
...any mitigating impact, that should only be considered when assessing damages. 17 Mr Vassall-Adams relied on Economou v De Freitas [2016] EWHC 1853 (QB), per Warby J at [17]: “The fact that the ordinary reasonable reader is assumed to read the whole of the article or other publication compl......
-
Tariq Alsaifi v Trinity Mirror Plc and Board of Directors
...and cannot be held responsible for any other part of that article. The principle on which she relies is included in this passage from Economou v De Freitas [2017] EMLR 4 [17]: “A media publication will often include some material for which the source bears responsibility and some for which ......
-
Bruno Lachaux v Independent Print Ltd
...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 conductin......
-
Rachel Riley v Mike Sivier
...publication causes serious harm depends on the reactions of others, rather than the perception of the claimant: Economou v De Freitas [2016] EWHC 1853 (QB); [2017] E.M.L.R. 4, Warby J, [131]. The assessment of harm to the claimant's reputation may take account of the impact of the publica......
-
Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia
...Subsequently confirmed in SerafinSC(n 133) [53].137. Defamation Act 2013 (UK) s 4(1)(b). Confirmed in Economou v De Freitas [2016] EWHC 1853 (QB) (‘EconomouHC’), not disturbed on appeal: [2018] EWCA Civ 2591, [86] (‘Economou CA’). Also approved in SerafinSC(n 131)[62], citing Lord McNal......