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Economou v de Freitas defamation case: appeal dismissed

28 November 2018

In what the leading judge called a case with “unusual and tragic facts”, the Court of Appeal has dismissed Alexander Economou’s appeal against the first instance decision that his defamation claims should fail.

The background

The daughter of the Defendant, David de Freitas, in the defamation proceedings, had previously made an allegation of rape to police against the Claimant, Mr Economou. Tragically, she killed herself just before she was due to be tried for perverting the course of justice in relation to the rape allegation following a private prosecution that was started by Mr Economou. Mr de Freitas then held a series of press releases and interviews about the scope of the inquest into his daughter’s death, and the CPS decision to take over her prosecution and continue with it, rather than discontinue it (it being in the CPS’s power to take over and discontinue private prosecutions).

Mr Economou claimed he was defamed by various articles published in national newspapers in November and December 2014, which quoted from Mr de Freitas verbatim and which, he argued, essentially meant that he had initiated a private prosecution against Mr de Freitas’ daughter on a false basis (or for bad motives) and was guilty of rape (or there were strong grounds for suspecting his guilt). Mr Economou was (deliberately) not named in any of the articles, but he argued the words referred to him by innuendo.

Unusually, rather than claiming against the publishers, Mr Economou brought his claim against Mr de Freitas personally. The Court of Appeal expressly did not criticise his choice of defendant, but noted “this decision had consequences for the framing of the issues at trial, and for their resolution.”

Serious harm

The judge at first instance (Warby J) held that Mr Economou had failed to establish the November publications caused him serious harm within the meaning of section 1(1) of the Defamation Act 2013 (the “Act”). His name was not public at the time of the November articles and he was not named in any of them. As Mr Economou was not widely identified as the subject of the November articles, they did not cause serious harm to his reputation and so were not defamatory in the statutory sense. Mr Economou appealed on the issue of serious harm, but having considered Warby J’s “careful analysis of the evidence”, the Court of Appeal upheld the original decision.

Public interest defence

Mr Economou’s other ground of appeal was against the finding that the public interest defence under section 4 of the Act succeeded in respect of all of the articles complained of, which ultimately meant the whole claim failed. The Court of Appeal only considered this issue in relation to the December articles which, by contrast to the November ones, had caused serious harm (because by the time they were published, large numbers of people would identify Mr Economou as the man involved in the story).

The Court of Appeal’s focus was on whether it was reasonable for Mr de Freitas to believe that publishing the statements complained of was in the public interest. Ultimately, the appeal judges held that Warby J was right not to accept that the Reynolds factors (a common law pre-Act recommended ‘check-list’ relevant to the consideration of a successful public interest defence) were key to the determination of reasonableness: “the critical point made by the judge… was that it would not be appropriate to hold the defendant to the standard that might be required of a journalist because he was not one: his role was closer to that of a source or contributor.”

Mr de Freitas had argued that he has assumed the media organisations to whom he had given his interviews and sent his press releases, had done the job of contacting Mr Economou for his side of the story, for balance and fairness, and did not consider it was his role, nor did he have the resources, to do so himself. The issue therefore was whether a ‘contributor’ or a ‘citizen journalist’ should be held to the same standard as a ‘professional’ journalist when making very serious allegations defamatory of another person.

The appeal judges noted the particular importance of the right to reputation in “an era of distrust and ‘fake news’”, but that had to be weighed up against the right to freedom of expression. The Court of Appeal was satisfied that Warby J had carried out “extensive consideration” of the matters complained of and expressly balanced the rights engaged. The judge had been entitled to conclude that, on this occasion, the balance fell in favour of Mr de Freitas in relying on the public interest defence and the appeal was dismissed.

Ultimately this is a case with no winners and it remains to be seen whether it will be further appealed.

The full judgment can be found here.

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