Defamation update part one: High Court considers application of public interest defence to articles on statins

In a recent significant judgment, the High Court considered the extent of the public interest and statutory qualified privilege defences in defamation cases. The presiding judge, Nicklin J, commented that this was “the most significant piece of defamation litigation that [he had] seen in a very long time”. Given its significance, this article is the first of a two-part series focusing on the key issues in the case and focuses on the court’s treatment of the public interest defence. In our next article, we will focus on the court’s treatment of the statutory qualified privilege defence.

Background

The claimants were Zoe Harcombe, a professional researcher, writer and public speaker on diet health and nutritional science, and Dr Malcolm Kendrick, a general practitioner, writer and lecturer, with a particular interest in the epidemiology of cardiovascular disease.

The defendants were the health editor of the Mail on Sunday and its owner, Associated Newspapers Limited. The case related to articles published in the paper which between them included statements such as “Statin deniers are putting patients at risk, says Minister”, “Deadly propaganda of the STATIN DENIERS”, “It’s worse than the MMR scare”, “Side effects are down to worry, not statins”, “REVEALED: TRUTH ABOUT THE THREE ‘EXPERTS’ WHO SAY DON’T TAKE STATINS”, and “There is a special place in hell for the doctors who claim statins don’t work”. They were also published online substantially in the same form as in print.

The claimants argued that on their natural and ordinary meaning, the articles complained of suggested that the claimants were liars, they were putting many people in Britain at risk, they were contributing to a public health catastrophe, and, in the case of Dr Kendrick, that he was unfit to practise medicine.

The defendants relied on various defences available under the Defamation Act 2013, including (i) honest opinion under s.13; (ii) truth under s.2; (iii) publication on a matter of public interest under s.4 (the focus of this article); and (iv) statutory qualified privilege under s.6(5) (for which see our next article).

The court directed that the defences of truth and honest opinion be left to a second trial.

The public interest defence

In order to succeed on this defence, a defendant must show that:

1. the statement complained of was, or formed part of, a statement on a matter of public interest; and
2. the defendant reasonably believed that publishing the statement complained of was in the public interest.

The judge did not hesitate to find that the defendants had shown that the first limb of the public interest defence was satisfied. However, he conducted a more detailed analysis in respect of the second limb.

In considering the facts and evidence provided, Nicklin J criticised the way in which the defendants went about publishing the articles complained of. In particular, he noted that:

• There was “a complete absence of any contemporaneous record of how, and on what basis…” the editor concluded that the publication was in fact in the public interest.
• There was “very little contemporaneous evidence” of the extent of his research into the claimants’ “public statements, or claims, about statins” prior to publication (and a failure to keep a record of which public statements he considered).
• Overall, the editorial process was “fundamentally unbalanced”, and “privileged access was given to the Professors with whom [he] had been working closely”, whereas the claimants were “treated as outsiders to the process…to be exposed as proponents of ‘fake health news’ about statins”.
• In the context of the public interest defence, “perhaps the most serious omission” was the editor’s treatment of the claimants’ right-to-reply responses. There was “no indication” that he “even set about grappling, substantively” with the majority of the points the claimants made.
• That the treatment in the articles of a statement by the Health Secretary at the time, Matt Hancock, had “effectively converted what was known by [the defendants] to be a general statement…into a very specific attack on three individuals”, two of whom were the claimants.

The judge stated that in assessing the reasonableness of a defendant’s belief that publication is in the public interest, “the focus is on the things the defendant said or knew or did, or failed to do, up to the time of publication”. He also stated that, for the purposes of the public interest defence, a belief is only reasonable if based on “such research and checks” as one could expect the defendants to have conducted in the circumstances of the case. While there must be space for editorial judgment, “it is not in the public interest for a publisher to misstate (or ignore) the evidence it has available”, even where that evidence is complex. If a publisher is unable to understand a topic, then it should question whether or not it is capable of publishing an article that it would be reasonable to publish in the public interest.

The articles in question invited readers to make up their own minds on the subject matter. It was therefore essential for the editor to give the claimants “a fair and proper” chance to respond to the criticisms he would make of them in the articles and to “faithfully [represent] what [they] had said in their own defence”, which the court held he did not.

Ultimately, Nicklin J dismissed the public interest defence. In doing so, he commented that the articles concerned did not properly or fairly reflect the “totality” of the material the editor had in his possession, and in some cases that material was misrepresented. Whilst this was in some part due to the little time he left himself to consider the claimants’ responses, this was no excuse, and his attitude towards the claimants’ responses suggested that he dismissed them, rather than engaging with them or considering them in any detail. As such, readers were “deprived of important context and balance” and were “misinformed about the statin debate”.

The judge found this to be a “fundamental failure” on the editor’s part, noting that it was unreasonable to believe it was in the public interest to publish such serious allegations against the claimants “with this editorial foundation”. The judgment goes on to say that, whilst the court accepts that the “issue of alleged misinformation” in relation to statins was of “significant public interest”,

“it does not serve the public interest for a widely read newspaper to misrepresent important facts relating to the statin debate and to deny readers important details of the material upon which the Claimants had relied in their own defence of serious charges of wrongdoing”.

It also highlights a “palpable irony” in the fact that the defendants “so seriously misinformed their own readers” in articles which “so roundly denounced those alleged to be the purveyors of misinformation”.

Despite the fact that  the editor did not believe the Claimants to be dishonest, this was at the heart of the allegation made against them, and the judge concluded that it was not reasonable to believe it is in the public interest to publish claims that one does not believe to be true. Specifically, it was not in the public interest for a widely read newspaper to misrepresent important facts and to fail to mention significant material relied on by the claimants in their response to the ‘right to reply’.

Comment

The judgment serves as a timely reminder of the importance of pre-publication enquiries and checks. Not only is it important to keep a contemporaneous record of how and on what basis it was concluded that publication is in the public interest, but a log should also be kept of the material considered ahead of publication. Indeed, the judgment notes that

“the absence of contemporaneous records is likely to impair a defendant’s ability to prove subsequently that his/her belief, at the time, that publication was in the public interest, was reasonable”.

Moreover, responses received in the ‘right to reply’ process should be properly considered and accurately reflected in the final publication.

The judgment is available in full here. In our next article, we will explore the court’s treatment of the statutory qualified privilege defence in this case.