Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The English High Court of Justice, in a preliminary decision concerning a libel case, disallowed the defendants from raising a defense of truth but allowed one of them to pursue a public interest defense. A video published on YouTube and Facebook showed one of the defendants interviewing the second and third defendants who alleged that the chairman of a charity had engaged in wrongdoing. The Court reasoned that the defendants had no chance of succeeding in a defense of truth at trial because they had failed to provide any evidence of the truth of their allegations. Likewise, the Court reasoned that the interviewees had not presented any evidence that would allow them to prove at trial that their belief that publication was in the public interest was reasonable. However the Court considered that the interviewer had merely reported the allegations of others and it could not be said that his public interest defense was bound to fail at trial.
The Plaintiff, Mr. Selvaratnam Suresh was a trustee and the chairman of the Oriental Fine Arts Academy of London (OFAAL), a registered Charity. A video was published on YouTube and Facebook in which Abdul Samad and Amirthalingam Nagarajah were interviewed by Kajananan Sathananthan. In the video, the two interviewees made several allegations concerning wrongdoing in which Mr. Suresh had supposedly engaged in his capacity as trustee and chairman of OFAAL. As a result of the video’s publication, Mr. Suresh brought a libel action against the interviewer and interviewees and a YouTube user identified as ‘Niyayam Enge’.
As part of the libel proceedings, Mr. Suresh filed an application to strike out the defenses of the first defendants and/or for summary judgment on his claims against them. The defendants, on their part, cross-applied for permission to amend their Defense to plead affirmative defenses of truth and/or public interest under the Defamation Act (2013). Mr. Justice Warby of the High Court of Justice issued its decision on January 18, 2017.
Justice Warby had to decide whether summary judgment was warranted and whether the affirmative defenses of truth and/or public interest the defendants intended to raise were capable of succeeding at trial.
He turned firstly to the truth defense first and applied the rule in Chase v. News Group Newspapers  EMLR 11 to establish the meaning of the words used. A Chase level 1 meaning is to the effect that the person has committed a wrongful act; a Chase level 2 meaning is that there are “reasonable grounds to suspect” that the person committed a wrongful act; and a Chase level 3 meaning is that there are “reasonable grounds to investigate” whether the person committed a wrongful act”. The defendants attributed a “Chase Level 3” meaning, namely that the impugned statement meant “that there were reasonable grounds to investigate whether the claimant had been guilty of certain kinds of wrongdoing”. However, the Judge considered that the impugned words “were not capable of bearing a meaning less serious than Chase Level 2”, meaning that the statements implied that there were reasonable grounds to suspect the claimant of wrongdoing. [para 7]
Next, the Judge reviewed the common law principles applicable to the defense of truth and concluded that, in order for the defense to be allowed, the defendants had to “disclose a reasonable basis for defending the claim, and be shown to have some real prospect of success”. He emphasized that the burden of proof lay with the defendants. After reviewing the factual evidence presented by both the defendants and the claimant, he highlighted that the defendants’ statements that the claimant had “refused to answer legitimate questions” and “no proper response was received” were baseless. In the case of the first statement, because the defendants had not proven that any questions relating the imputations had been made to the claimant. As to the second statement, because it implied that a response had been received and it had not been proper, when it fact they had not proved that they had received a response of any kind. [paras 11, 28 and 30]
As the defendants were relying on the refusal to answer and the lack of a proper response to support their other various claims that the claimant had engaged in wrongdoing, the Judge concluded that “there is no prospect that the defendants could muster a defence with a chance of success at trial, and every reason to bring this issue to a close at the present stage. It has already been unduly expensive in terms of costs and time”. [para. 35]
The Judge then proceeded to assess the viability of the public interest defense. For this purpose he reviewed the principles he had set out in Economou v De Freitas  EWHC (QB) at , these being:
In addition to the public interest defense, the two interviewees also intended to raise as a defense that they had not intended their comments to be published. The claimant’s advocate considered this incompatible with their intended public interest defense because “a person cannot have a reasonable belief that the publication of a particular statement was in the public interest if (as these defendants maintain) he did not intend that statement to be published”. However, the Judge considered that it was not “inherently improper” to allow defendants to plead “alternative cases”. [para 58]
The Judge accepted that the interviewees’ state of mind was such that they sincerely believed that publication of the statements was in the public interest. However, he said that this did not necessarily mean that such belief was reasonable. He noted that the fact that the Police and the Charity Commission had rejected the interviewees’ allegations did not necessarily mean that they could not reasonably believe that it was in the public interest to publish the allegations. He said that “it may in some circumstances be legitimate to make allegations public even if they have been put to and rejected by the competent authorities”. However, he ultimately concluded that the interviewees had not presented any evidence that would allow them to prove at trial that their belief that publication was in the public interest was reasonable. [para. 66]
The Judge distinguished the case of the interviewer from that of the other two defendants as his role had been that of reporting the allegations of others. He considered that, while the interviewer may have failed to carry out sufficient checks or to provide the claimant with an opportunity to comment before publication, it could not be said that his public interest defense was bound to fail at trial. For this reason he refused to grant the claimant summary judgment and allowed the interviewer time to re-cast a defense of public interest.
Thus, the Judge ruled that none of the defendants would be allowed to raise the defense of truth at trial, that the interviewees would not be allowed to raise the defense of public interest, and that the interviewer would be allowed time to re-cast his defense of public interest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case affirms that the public interest defense requires proof not only of a sincere belief that publication was in the public interest, but also that such belief was reasonable and held at the time of publication. This contrasts with the situation in the U.S. where, if the defamatory statement relates to a matter of public interest, the burden of proof is on the plaintiff who must prove the defendant was at least negligent as to the falsity of the statement (if the plaintiff is a private person) or acted with actual malice (if the plaintiff is a public official or public figure).
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