Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
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The U.K. High Court ruled in favour of the Defendant holding that the ‘public interest’ defense in Section 4 of the Defamation Act 2013 was made out in respect of the publication of defamatory statements about the Claimant.
The Claimant, Alexander Economou, brought defamation proceedings against David de Freitas in relation to published statements detailing how his daughter had killed herself after being put on trial for allegedly fabricating a rape allegation.
The Court said that two of the seven publications complained of by the Claimant were actionable because they specifically identified him and caused him serious harm. However it reasoned that the ‘public interest’ defence was made out in respect of all seven publications because they raised questions into the conduct of the Crown Prosecution Service (CPS), whether there was sufficient evidence to prosecute the Defendant’s daughter and whether her vulnerable mental state was properly considered by the CPS before proceeding. In reaching its decision, the Court said that the central dispute was not whether the publications concerned matters of public interest (because alleged misconduct by a public body clearly is), but rather whether the Defendant “reasonably believed that publication of the particular statement was in the public interest“. The Court noted that “there is little scope under Art.10(2) of the Convention for restrictions on… questions of public interest…” and stressed “the need to demonstrate convincingly that a restriction on Article 10(1) rights is necessary and proportionate in pursuit of an identified legitimate aim“.
The Defendant’s daughter Eleanor de Freitas had accused the Claimant, Alexander Economou, of rape. In response, Mr Economou went to the police station to file a complaint against Ms de Freitas for falsely accusing him. He was detained there on suspicion of rape but not charged. After his release, Mr Economou began to collect evidence against Ms de Freitas in support of a private prosecution against her for the common law offense of perverting the course of justice. During the process he sent threatening messages to Mr de Freitas, the Defendant and Mrs de Feitas, Ms de Freitas’ mother.
Under pressure because of the impending trial exacerbated by a pre-existing mental disorder, Ms de Freitas took her own life. In the days following her death, the Defendant asked that the scope of the inquest be expanded to review the role of the Crown Prosecution Services (CPS), who had taken charge of the private prosecution.
The Defendant went public with the story in several publications. The first four were interviews with the Guardian and the BBC aired from 6th to 8th November, 2014. In these interviews, Mr de Freitas focused on his daughter’s bipolar disorder and the role of the CPS in handling similar cases in which there was a great deal of public interest.
In later interviews, he explained why he felt that the CPS had ignored his daughter’s claims, making no efforts to investigate or gather more evidence, suggesting that she would have still been alive if it had dropped the prosecution.
Mr Economou claimed that the statements made in these interviews constituted libel since they accused him of falsely prosecuting Ms de Freitas in an attempt to pervert justice and conceal his crime. Although he had not been expressly accused, he claimed that he could be identified as the subject of these statements.
In his judgment, Mr Justice Warby said there were five main issues regarding liability: (1) whether Mr Economou was referred to by the publications complained of; (2) in one instance, whether Mr de Freitas was responsible for the publication complained of; (3) what if any defamatory meaning about Mr Economou was conveyed by the words for which Mr de Freitas was responsible; (4) whether the publication of the statements complained of caused serious harm to Mr Economou’s reputation; and (5) whether Mr de Freitas was entitled to rely on the statutory defense of publication on a matter of public interest.
Mr Justice Warby went on to explain the legal principles underpinning the first four issues, which he referred to as the ‘Cause of Action Issues’
Identification: Defamation requires that the words published should refer to the claimant [Knupffer v. London Express Newspaper Ltd  AC 116] but this doesn’t mean that defamatory words that do not name the person to whom they refer are immune from action for libel. A person may be libeled 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.
Responsibility: A defendant is responsible for the re-publication of statements he made knowing that that they would be re-published.
Meaning: A statement is defamatory if it substantially adversely affects the attitude of people towards the subject of the statement which will be inferred from the normal and ordinary meaning of the words used.
Serious harm: Under Section 1 of the Defamation Act, mere publication of the defamatory statement is not sufficient, and the statement must also be likely to cause serious harm to the reputation of the claimant.
Mr Justice Warby then reviewed all seven publications finding that only two were actionable. In summary, Mr Justice Warby said that the words complained of in the First Guardian Article bore meanings defamatory of Mr Economou, but not ones as serious as he suggested. Because his name was not public at the time he was not widely identified as the subject of those words and the publication did not cause serious harm to his reputation among those who did identify him. The Judge said the same was true of the Today Radio item and the BBC TV Interview. The words complained of in the Second Guardian Article did not refer to or defame Mr Economou, said the Judge and, for similar reasons to those that applied to the first three publications complained of, he did not find that the words or the article as a whole caused serious harm to the Claimant’s reputation. On the other hand, he said that the words complained of in the Telegraph Article referred to and bore a meaning defamatory of Mr Economou, and their publication caused serious harm to his reputation; the same applied to the de Freitas Article. However the words complained of in the Third Guardian Article satisfied none of these requirements. In conclusion therefore, the Judge found that only two of the seven publications complained of were actionable by Mr Economou.
Public Interest Defence: under Section 4 of the Defamation Act 2013 a defendant must prove (a) that the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) that he reasonably believed that publishing the statement complained of was in the public interest. Judge Warby clarified that the central dispute in this case was not whether the publication concerned public interest but whether the defendant reasonably believed that it was in public interest. This was because the statements undoubtedly concerned issues of public interest. These included the functioning of the CPS; the fact that this was a rape case and the sensitivities involved in the handling of rape victims (particularly so for those who are especially vulnerable, like Ms de Freitas who was already suffering from bipolar disorder); the role of an inquest as a vehicle for exploring, in public, the propriety of decision-making in this area; and the desirability of permitting private prosecutions for allegedly false complaints of rape, or for that matter, sexual crime more generally.
The Court considered the facts relevant to the reasonableness of the Defendant’s belief and state of mind. It concluded that the Defendant’s focus at all times had been the CPS, specifically that his daughter’s death could have been avoided if the CPS had decided not to go ahead with the prosecution. The Defendant at no time stated or implied that the rape allegations were true or that the CPS’s decision not to prosecute Mr Economou wasn’t grounded in law.
In carrying out its analysis of whether a belief is reasonable under the Act and that such a belief will be reasonable “only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant“, Mr Justice Warby said that the Court will adapt to the circumstances of the individual case. In the present case, the Judge said that Mr de Freitas’ role was “closer to that of a source or contributor than that of a journalist“ and it would be wrong to expect him to carry out the necessary checks and enquiries that the journalist is professionally expected to do prior to publication. It was therefore important to take into account Mr de Freitas’ role as the father of a young woman who had killed herself. In this context, the Defendant’s belief that the publications were in the public interest was held to be ‘reasonable’ because he reasonably believed he was raising issues of public importance, he was in a unique position to raise them as a first-hand observer and, as the father of the woman, he had sufficient information to form a view on the conduct of the CPS.
Mr Justice Warby concluded that “Mr de Freitas could and did properly consider the publication to be in the public interest; and that a judgment in favour of Mr Economou would represent an interference with Mr de Freitas’ free speech rights out of any reasonable proportion to the need to protect and vindicate Mr Economou’s reputation.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by ruling that a defendant’s reasonable belief in the public interest of publication depends on the individual’s circumstances. One size doesn’t fit all and, in this case, a grieving father would not be required to carry out the checks and enquiries that would be expected of a professional journalist.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 1 & 4
The basis of the new public interest defence in Section 4 of the 2013 Defamation Act.
The threshold for reasonable belief assessed on the basis of the meaning that the maker of the statement intended to convey.
The interviewee should not be bound by the standard of enquiries and checks that govern a journalist.
Ordinary and reasonable meaning is identified on the basis of what is inferred by an ordinary reader, without reading one part of such statement in isolation or attributing a meaning that can be understood only a certain group of persons.
Defamation requires that the words published should refer to the claimant.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.