The 2013 Defamation Act introduced a new defense for publishers who argue their work serves the public good. Section 4 of the Act allows a defendant to avoid liability if they can show the statement was on a matter of public interest and they reasonably believed publishing it was in the public interest. This legal shift replaced the older common law standard known as the Reynolds defence, which required proof of responsible journalism.
The Supreme Court recently clarified how courts should assess this defence in Serafin v Malkiewicz. The court emphasized that Parliament did not intend to simply import the old Reynolds test into the new legislation. While the list of factors used in the Reynolds case is not mandatory, the court noted that references to acting “responsibly” should be avoided since that concept was explicitly removed from the 2013 Act.
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The court also ruled that giving a potential claimant a chance to comment before publication is not a legal requirement. However, a failure to do so can still affect whether the publisher’s belief was reasonable. When assessing the defence, courts must balance the claimant’s right to private life under Article 8 of the European Convention on Human Rights against the publisher’s right to free expression under Article 10.
This balancing act often depends on the status of the claimant. In Yeo v Times Newspapers Ltd, the court found that a Member of Parliament had no reasonable expectation of privacy regarding matters connected to their public duties. Since the publication was related to the claimant’s public conduct, the court prioritized the defendant’s freedom of speech over the claimant’s right to a private life.
The defense is not limited to professional media outlets. In Economou v De Freitas, the Court of Appeal confirmed that the standard for a “citizen journalist” is different from that of a professional. The court noted that the public interest defense is more subtle when the defendant is a private individual rather than a trained reporter.
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This distinction creates a complex environment for anyone publishing online. Packham v Wightman showed that simply sharing a statement is not enough to secure the defense. Aaronson v Stones further illustrated the risks, where a judge described the defendant’s role as a “quasi-reporter” lacking journalistic standards and verification processes. In that case, the court decided the defense did not apply because the publication lacked established urgency and failed to give the claimant a chance to respond.
For individuals publishing reviews or complaints online, the legal threshold remains high. A person writing about their own experience may find it difficult to prove they reasonably believed their statement served the public good. While a warning about public health risks might qualify as a citizen journalist act, a complaint about poor service is unlikely to meet the rigorous standards required to succeed in court.
