Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The England and Wales High Court dismissed a claim for damages and injunctive relief for libel and misuse of private information. The claim arose out of an article alleging that the Claimant had defrauded numerous people while misusing his official position in a charity to wrongfully profit himself and his company. The focus of the trial was to determine whether the words complained of were defamatory and, if so, whether any of the pleaded defenses were made out. The Claimant’s case turned on thirteen separate meanings: the Court upheld the defense of truth for certain allegations, stated that the test of serious harm was not met on one of them, upheld the defense of public interest across the board and dismissed the claim for misuse of private information of a photograph reasoning that there was no reasonable expectation of privacy in the use of a photograph which was taken in a semi-private moment, displayed and captured in a public setting on a beach.
The Claimant, Mr. Jan Serafin, a Polish businessman who migrated to the U.K. in 1984, sued the Editor-in-Chief (First defendant) and Director (Third Defendant) of Czas Publishers Limited (Second Defendant), a Polish-language newspaper distributed in London for publishing a defamatory article against him in October 2015. The First Defendant described the article as “a modern morality tale about how the Claimant, a well-known and prominent person within the Polish émigré community in London, had behaved since his arrival in this country and how he is likely to behave in future” [para. 4]. It shed light on the Claimant’s alleged wrongdoings in his business transactions as a builder and food importer, his evasion of taxes while running a Jazz Café, defrauding unwitting investors of their life’s savings, misusing his official position in a charitable organization to cause wrongful gain to his business and being a womanizer. The Claimant sued the Defendants under the Defamation Act 2013.
The Claimant relied upon individual meanings in the article to demonstrate that serious harm was caused to his reputation under Section 1 of the Act [para. 43]. The Defendants’ objected to these individual meanings and contended that this was a ‘common sting’ case where the words complained of may be shepherded into a more general imputation [para 43].
The Defendants contended that the words complained of were substantially true under Section 2 of the Act [para 44]. Further, the Defendants sought to defend two aspects of the article – the title reading, “Bankruptcy need not be painful” and an innuendo relating to the caption of the image, as honest opinions under Section 3 of the Act [para 296]. The Defendants advanced a public interest defense under Section 4 of the Act [para 308] in relation to the whole of the article and pleaded that there was no expectation of privacy in relation to the photograph of the Defendant on a beach, posted along with the article.
Judge Robert Jay, sitting as a single judge, dismissed the claim and held in favor of the defendant. The central issue was whether words complained of were defamatory and caused serious harm to the Claimant under Section 1 of the Defamation Act 2013, and (if so) whether any or all of the pleaded defenses were made out [para 5].
Of the thirteen allegations that the Court divided the article into, it upheld the defense of truth for seven allegations, upheld the defense of honest opinion for another two, stated that the test of serious harm was not met for one of them, upheld the defense of public interest across the board and dismissed the claim for misuse of private information [para 352]. The Court agreed with the Defendant and applied the test of an “ordinary reader of the newspaper” to determine the harm to reputation [para. 48] ((Jeynes v. News Magazine,  EWCA Civ. 130 para. 14). The Court agreed with the Claimant on the issue of this not being a ‘common sting’ case and held that the evidential and conceptual link between the various phases of the story was insufficiently tight [para 55]. Thus, the analysis of the imputations must be separate and distinct in law as a matter of fact and degree, and the Defendants must establish the truth of each on an individual basis [para 57].
The Court noted that the phrase “substantially true” under Section 2 must be given the same meaning as it had at common law [para. 183] (Rothschild v. Associated Newspapers Ltd.  EWCA Civ. 97) and upheld the defense for allegations 1- 7. The Court upheld the defense of honest opinion under Section 3 of the Act because it was reasonable for an intelligent layperson to hold the opinion that the Claimant’s creditors would never be repaid based on the facts . Regarding the public interest defense under Section 4 of the Act, the Court reiterated that it was not necessary to find a public interest justification for each item of the article (Jameel v. Wall Street Journal  1 AC 359 para. 108) and upheld the defense for the entire article. Lastly, the Court dismissed the claim for misuse of private information for the accompanying photograph by balancing the circumstances surrounding the publication [para. 350] (Murray v. Express Newspapers Plc  Ch 481 para. 36). It stated that a reasonable expectation of privacy did not arise as it was a semi-private moment, displayed and captured in a public setting on a beach [para. 351].
Therefore, the Court dismissed the claim for damages and injunctive relief.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court expands expression and concludes the judgment by observing that the case is a cautionary warning that defamation litigation of this sort should not be initiated out of unbounded self–confidence in the misplaced belief that the court will succumb to the same charm and eloquence that worked so effectively in the outside world.
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