Economou v de Freitas [2018] EWCA Civ 2591 [2019] EMLR 7

Facts

  • Mr. Economou, a businessman with interests in shipping and finance, brought a defamation claim against Mr. de Freitas, a former employee of a company associated with Mr. Economou.
  • Mr. de Freitas made allegations of bribery and corruption against Mr. Economou, which were published in a report and disseminated to regulatory bodies and media.
  • Mr. Economou argued the allegations were false and caused significant reputational harm.
  • At trial, the judge held that the statements were defamatory and found the public interest defence under s.4 Defamation Act 2013 did not apply, as Mr. de Freitas had not demonstrated a reasonable belief in the public interest of publishing the statements.
  • Mr. de Freitas appealed to the Court of Appeal.

Issues

  1. Whether the defendant’s statements concerned matters of public interest within the meaning of s.4 Defamation Act 2013.
  2. Whether the defendant had a genuine subjective belief that publishing the allegations was in the public interest.
  3. Whether the defendant’s belief in the public interest was reasonable, having regard to steps taken to verify the statements and potential harm to reputation.
  4. Whether the public interest defence provides blanket protection or requires a balancing between freedom of expression and protection of reputation.

Decision

  • The Court of Appeal upheld the trial judge’s decision, finding that Mr. de Freitas had not shown a reasonable belief that publishing the allegations was in the public interest.
  • The Court agreed that the allegations of bribery and corruption were matters of public interest but emphasised that the defence’s focus is on the defendant’s belief and the reasonableness of that belief.
  • The Court found that Mr. de Freitas failed to take adequate steps to verify the accuracy of the allegations and did not sufficiently consider the potential reputational harm to Mr. Economou.
  • The public interest defence under s.4 was deemed unavailable in the circumstances.

Legal Principles

  • Section 4 of the Defamation Act 2013 requires (1) publication on a matter of public interest, and (2) a reasonable belief by the defendant that publication was in the public interest.
  • The statutory defence centres on the defendant’s subjective belief and the objective reasonableness of that belief, not the truth of the statement.
  • The defence necessitates a balancing exercise between freedom of expression and the protection of reputation.
  • Reasonable steps must be taken to verify the information and assess public interest prior to publication.
  • The approach differs from common law Reynolds privilege by focusing on belief and reasonableness.

Conclusion

The Court of Appeal in Economou v de Freitas clarified that the public interest defence under s.4 Defamation Act 2013 demands a genuine and reasonable belief in the public interest of publication, underscoring the need for responsible verification and balancing of reputational harm before defamatory statements are made public.

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