Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The High Court of England and Wales dismissed a defamation claim brought by Mr. David, a Governor of a National Health Service Trust, against another Governor for complaints she filed alleging that he had acted in an inappropriate manner during Governor meetings. The complaints also alleged that Mr. David was acting inappropriately because the other Governor, Ms. Hosnay, had rejected his advances. The High Court found that the written complaints had been published to certain individuals related to the Trust, and that they had contained defamatory meanings capable of causing serious harm to Mr. David’s reputation. However, the High Court found that Ms. Hosnay could rely on the defense of “qualified privilege” since she had an interest in making the complaints and the recipients had a corresponding interest in receiving them. This was also true for those recipients who were not decision makers in the complaints process, but who played an indispensable role in such a process. The High Court rejected the argument put forward by Mr. David that Ms. Hosnay’s defense should fail because she had acted with express malice. The High Court determined that, on the balance of probabilities, the complaints were made with the honest belief that they were true and fair.
The Claimant, Mr. Kofoworola Adeolu David, and the Defendant, Ms. Zara Hosany, worked together as Governors of the East London Foundation National Healthcare Service Trust and “developed a friendly relationship with one another”. [para 1.4] On the evening of January 20, 2015, after a meeting, they were out for supper and drinks when Mr. David allegedly made a pass at Ms. Hosany. This was disputed by Mr. David. Over the next few days, Ms. Hosany claimed that she had been harassed and bullied by Mr. David during meetings of the Governors Quality Improvement group, and she claimed that these actions were motivated by her rejection of Mr. David’s advances.
Subsequently, Ms. Hosany drafted and sent two written complaints and an email to various individuals associated with the Trust. The second written complaint was made under the Governors Code of Conduct. Between March and June 2015, the second written complaint was considered by the Nominations and Conduct Committee of the Governors, which also decided to engage an independent consultancy, Capsticks, to carry out an inquiry. Mr. David was later suspended as a Governor, and he subsequently resigned.
Mr. David brought a claim in defamation under the Defamation Act of 2013 in relation to the two Written Complaints and the Email. Ms. Hosnay “relied upon the defence of common law qualified privilege to which [Mr. David] responded with a plea of express malice”. [para 1.5] Accordingly, the Court dealt with five issues of contention: (i) whether Ms. Hosany was liable for the full “extent of publication of each document”; (ii) “the nuances and severity” of the defamatory meanings of the statements; (iii) whether Ms. Hosnay could rely on the defense of qualified privilege; (iv) whether Ms. Hosnay’s defence could be defeated by Mr. David’s plea of express malice; and (v) whether any “serious harm was caused to the reputation” of the Mr. David. [para 1.6]
Judge Moloney QC delivered the judgment of the High Court of England and Wales (Court) and held in favor of Ms. Hosnay. The Court dealt with each of the five issues in turn.
The Court recounted the circumstances under which an individual can be responsible for publication and onward publication of defamatory material. In relation to the latter, an original publisher will only be liable for onward publication by another person when it has been authorized or ratified by the original publisher or where it was reasonably foreseeable that onward publication would take place.
The Court noted that the first written complaint was sent by Ms. Hosnay to the Chair and Secretary of the Trust, as well as another Governor who was a friend that Ms. Hosnay wanted to attend Conduct Committee meetings (as permitted by the rules). Ms. Hosnay was not responsible for onward publication because that was the result of unforeseeable events outside her control.
The second written complaint, which was made under the Governors Code of Conduct, was circulated to a much wider group of people, including Committee members, their advisors, and an outside consultant (Capsticks). These onward publications were found to be a reasonably foreseeable consequence of Ms. Hosnay’s complaint, so she could be treated as the publisher in these circumstances. The email was sent directly to two people, and Ms. Hosnay was resonsible for these publications. Mr. David was unable to prove that any additional people actually read the email. He could also not prove that the complaints had been distributed to and read by a wider class of people unknown to him. The Court observed that if such a wide circulation had taken place, Mr. David would have likely received a copy and he did not.
The Court reached its own conclusion on the defamatory meaning of the written complaints and email. When determining the meaning of a statement, the Court must take into account the characteristics of the hypothetical reasonable reader. On this occasion, the Court stated that “[t]hey may be presumed to be serious responsible people, who in a work context would be likely to approach documents more carefully and analytically than the general newspaper reader.” [para. 3.4] The Court also took into account the context and circumstances surrounding the statements, and noted that the statements were made in a formal official context that would likely lead a reasonable reader of such statements to adopt a more careful and analytic approach.
The Court set out a number of defamatory meanings to be found in the complaints and email. For instance, the written complaints were found to carry the meaning that “[i]n the course of working with Ms Hosany as a fellow governor of the East London Foundation NHS Trust, Mr David persistently bullied, insulted and intimidated her, face to face, at meetings, and by email, to such an extent that she suffered serious physical and emotional stress.” [para. 3.10] The email was found to contain the meaning that “Mr David deliberately harassed and intimidated Ms Hosany at a meeting on 30 June 2015 by attending it, sitting next to her and following her around, when he well knew that she did not want him to do so and found it distressing.” [para. 3.22]
The Court determined that Ms. Hosnay’s detailed description of Mr. David’s conduct on the night of January 20, 2015, that he grabbed her around the waist, pulled her to him, and whispered that he wanted them to be more than friends, was not defamatory. Judge Moloney QC stated that “a reasonable, right-thinking member of modern society would not consider it shocking or discreditable for a man, at the end of a social evening alone with a single woman of equal status whom he found attractive and friendly, to put his arm around her waist and ask her if she would like them to become closer. Provided he did nothing positively indecent and took “No” for an answer, most right-thinking people would accept this as a normal part of life, as indeed Ms Hosany says she did at the time.” [para. 3.14] The Court noted that the second complaint was less detailed, giving rise to a defamatory meaning that Ms. Hosnay was sexually harassed by Mr. David on that night.
The Court went on to recount the law on the defense of qualified privilege. It noted that “a well-recognised occasion of privilege has long been the making and handling of complaints to the proper authorities, especially complaints about public officers, persons in authority and those with responsibilities towards to public.” [para 4.3] The Court went on to observe that “[i]n order for the purposes underlying the privilege to be carried into effect, the defence is not confined to publications passing directly between the person making the complaint and the person whose role it is to determine it. The law recognises that, as a practical matter, other people such as advisors, secretaries and administrators are likely to play a part in facilitating the process, and the privilege extends to such “ancillary” publications as are reasonably required to carry the privileged purpose into effect.” [para 4.4]
The Court reviewed the complaint procedure for the Trust and concluded that each of the written complaints took place on a clear occasion of privilege. This was also the case when onward publication was made to other staff members since they were “indispensable to the [complaints] process”, even though they were not the decision makers. The email was also found to be privileged as Ms. Hosnay had a legitimate interest in communicating with responsible Trust officials that she had come into contact with Mr. David, and they had a duty to receive the email and act upon it.
Qualified privilege will succeed as a defense as long as express malice is not proven by the person taking the defamation claim. Express malice is where the publisher had an improper motive for publishing the words and the improper motive was the sole or dominant motive. If a publisher did not believe what they published was true, or they were reckless as to the truth, this would generally be conclusive evidence of express malice. In this case, the Court went into significant detail about the events of and following January 20, 2015, and found on the balance of probability that Ms. Hosnay made her written complaints honestly believing that they were true and sincerely held. The Court could find no credible evidence that there was express malice in relation to the email.
Since Ms. Hosnay successfully raised a defence to Mr. David’s defamation claim, it was unnecessary to consider whether the threshold requirement of “serious harm” to reputation had occurred. Nonetheless, Judge Moloney QC went on to say a few words about whether it had been met in this case. He took into account Mr. David’s role as a Governor, as well as his political ambition, and said that Mr. David’s “good name in that area of his life, and particularly among his fellow Governors, was a very important matter to him, both subjectively and objectively. Publication of these documents within that circle has in my judgment actually caused real and serious harm to his reputation within the Trust, to a sufficient degree to pass the … threshold.” [para 6.7] He opined that if Mr. David had not been able to bring a claim in defamation in this case because of the “serious harm” threshold test, that would have interfered with his rights to a fair trial and reputation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom as it holds that the defense of qualified privilege is not confined to publications passing directly between the person making a complaint and the adjudicating person. It extends to subsequent communications to ancillary persons playing a part in facilitating the process, such as advisors, secretaries and administrators. Moreover, cogent evidence is required to defeat the qualified privilege defense.
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