A Potential Defamation Claim Advice

Matter: Prism Daily Probe article: Potential Defamation Claim by Derek Wheeton This memorandum sets out my advice concerning the article headlined “Crooked Local Businessman Cashes in on Charity Event” published on 17 October 2014 and the letter of claim received from solicitors acting for Mr. Wheeton dated 27 October 2014. You have asked me to consider the following matters:

1. Whether the article is defamatory of Mr Wheeton including whether it meets the new s1 Defamation Act 2013 threshold (remember that your advice on this point should include your assessment of the range of meanings that arise from the article);
2. Your advice about the strength of any defences available to Prism if Mr Wheeton commences defamation proceedings against us.

Dealing with each of these in turn:

1. Whether the article is defamatory of Mr Wheeton including whether it meets the new s1 Defamation Act 2013 threshold (remember that your advice on this point should include your assessment of the range of meanings that arise from the article)

Mr. Wheeton has to satisfy three requirements in order to discharge his burden of proof. These are; (a) that the article is defamatory, (b) that it would be understood to refer to him in connection with the defamatory allegations and (c) that the article has been published to third parties. Meaning asserted on behalf of Mr Wheeton The letter of 27th October 2014 forwards the claim at chase level 1 meaning (assertion of guilt of criminal conduct)[1], by accusing Mr Wheeton of gaining a financial advantage from local charities. Mr Wheeton solicitors argue and point towards a chase level 1 meaning stemming from the headline, captions and the general tone of the article. This is a miscalculated approach which will therefore allow Prism to take a different approach from the following meanings:

1. Under the single meaning rule the “reasonable reader” test is applied, this is an objective test, which describes the reasonable reader as to not restrict themselves to certain parts/elements to the article, but reading article as a whole.[2] This approach also known as the bane and antidote approach allows certain defamatory parts of the article to be counteracted by other parts of the article. In the, ‘Crooked Local Businessman Cashes in on the Charity Event’ article any impression that the article gives that Mr. Wheeton has been a crooked local business man is watered down by the rumors from an unidentified source which has definitely not been established as being valid.

Mr. Wheeton’s solicitors support the level 1 meaning. The court will refuse to admit such evidence because the meaning has to be determined by the application of the reasonable reader test rather than by reference to the actual understanding of real readers.

1. It is clear that he has been identified in the article as he has been named explicitly.
2. It is self-evident that publication has taken place. The newspaper was published on 26 September 2013 (in hard copy and online).

The three meanings above strongly oppose the Chase level 1 meaning. However, the level 1 meaning does however remain disputable. It is unlikely that Prism would succeed in application to strike out the meaning as being unsustainable should proceedings be issued. There is a strong argument that the natural and ordinary meaning of the article read as a whole and avoiding a strained interpretation, is pitched at Chase level 2 (reasonable grounds for suspecting Mr Wheeton has been part of a scandal/acting unethically) or Chase level 3 (reasonable grounds for investigating whether he has been part of a scandal/acting unethically). Both of these alternative meanings are arguable. In my view, the level 2 meaning is most likely to be accepted. The fact that investigations have already been taken out shows that there is reasonable grounds to suspect it, therefore its not 100% conclusive, but it strongly points towards speculation and reasonable grounds for suspecting Mr Wheeton’s incompetence in his profession, which is not removed by the inclusion of the statistics. The level 2 meaning is, of course, more serious than level 3 and would be likely to give rise to larger damages award should it be upheld in trial. In addition to this, all of the potential meanings referred to above are defamatory in the sense they would lower Mr Wheeton in the estimation of right thinking members of society[3].

 There are two elements which are at stake for Mr Wheeton, and these are his personal and business reputation he holds in the community.[4] S 1 Defamation Act 2013 S1 Defamation Act 2013 introduces a new threshold of seriousness which Mr Wheeton must establish before a court will consider that the article is defamatory. In relation to his personal reputation, Mr Wheeton must establish that the article has caused serious harm to his reputation as a body trading for profit he must establish serious financial loss or the likelihood of it (s1(2)). These provisions are new and there is limited guidance about how they are to be interpreted. My advice is that Mr Wheeton is likely to meet the threshold on the basis of all three meanings referred to above. In relation to s1(2) it cant be proved that Mr Wheeton has had a financial loss, assuming he has, he can establish that the loss was caused by the article, it is therefore unlikely that the introduction of the new threshold will materially impact on Prism’s position should a claim be commenced against it. Conclusion of the validity of Mr Wheeton’s claim My advice is that Mr Wheeton can clearly discharge his burden of proof in a defamation claim. Next, I will assess the strength of the defences available to Prism if Mr Wheeton were to commence proceedings.

1. Your advice about the strength of any defenses available to Prism if Mr. Wheeton commences defamation proceedings against us.

Public Interest Defence

It is my firm advice that Prism has a strong claim to the public interest defence. In relation to the fist limb, s4 (1) of the Defamation Act 2013[5] “provides for the defence to be available in circumstances where the defendant can show that the statement complained of was, or formed part of, a statement on a matter of public interest and that he reasonably believed that publishing the statement complained of was in the public interest”. This has both an objective and subjective element as was stated in the case of Flood v Times Newspapers[6]. It is notable that there is no definition of “public interest” and a holistic view is to be taken by the courts on the document as a whole. S4 (2) of the Defamation Act 2013 states the “……the court must have regard to all the circumstances of the case”. Is Story in the Public Interest? Depending on if the subject matter is in the public interest or not is the judges decision (S4(1)(a)), in the cases of Reynolds v Times Newspapers[7], GKR Karate v Yorkshire Post national security[8] and Jameel v Wall Street Journal[9], in these cases political subject matter and issues of local importance were discussed in the public interest, and in the case of Flood v Times Newspapers[10] the corruption within the police was deemed to be a matter of public interest. In the Jameel case, it was held public interest includes, but is not confined to, i) detecting or exposing crime, ii) protecting health and safety iii) preventing the public from being misled by an action of the statement of an individual or an organization. In this case, there is a strong argument for preventing the public from being misled by an action of the statement of an individual or an organization under the third criteria of the Jameel case, the fact that Mr Wheeton has had his reputation damaged strongly points towards the public being misled (iii), and therefore is a strong claim for public interest. 

Even though there is a solid case of public interest, the Defendant must reasonably believe that the statement complained was in the public interest for the defence to succeed. Did the Defendant reasonably believe that publishing the statement complained of was in the public interest? The defendant must believe that it was in the public interest to publish the material and this has to be subjectively, s(4)(4) states, in determining whether it was reasonable for the Defendant to believe that publishing the statement complained of was in the public interest, the court must take allowance for editorial judgment as it considers appropriate, s4(2) poses the question, whether this belief is reasonable in all the circumstances? Did you believe the story? Did you have an unfounded belief that the story is true? Did you have a good reason to identify the Claimant/and or present the story in a particular way? The fact that you have identified Mr Wheeton in the article purely for the purposes of public interest remains justifiable on your part, and also the story would lack credibility if the name were omitted once again remaining justifiable on your part, however I feel the situation could have been handled better from Matthew Peake, Mr Wheeton did however return the call promptly but Matthew Peake did not respond to the message Mr Wheeton left him, perhaps this should of have been incorporated and emphasized into the article, regardless of this, due to this case being about Mr Wheeton stealing money from the charity it instantly is a public interest and therefore the defence can clearly be used.

Honest Comment

Prism Publishing Plc may be able to use the defence of honest comment, but once again it is my firm advice that Prism may also fail this defence. In order for the defence to succeed the defendant must show material is a) an expression of opinion (as opposed to a statement of fact) b) Indicating its factual basis, and c) the opinion could be held by an honest person on the basis of any fact which the defendant can prove to be true that existed at the time. By saying Mr Wheeton is a ‘crooked local business man’ is conveyed as an opinion, and this opinion has all been based on information that an unidentified source has released. However, the defence may fail under the final element of this defence. It is of my opinion, applying this test objectively, that an honest person may have investigated the facts properly which existed at the time before publishing the article, to form a true opinion on whether Mr Wheeton has been an unethical crooked business man or not. This is rather than using an unidentified source with no proper evidence, therefore on these grounds Prism is likely to fail on this defence. Please contact me if you have any questions concerning my opinions or if you have any other questions to ask I look forward to receiving your further instructions. 

References:

1. Hulton v Jones [1910] AC 20
2. Charleston v NGN [1995] UKHL 6
3. Sim v Stretch [1936]2 All ER 1237
4. Drummond Jackson v BMA [1970] 1 WLR 688
5. Defamation Act 2013
6. Flood v Times Newspapers [2012] UKSC 11
7. GKR Karate Yorkshire Post [2000] 2 All ER 931
8. Jameel v Wall Street Journal [2007] 1 AC 359 

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