Investigative Journalism and Defamation: The Public Interest Defence

English law recognises the importance of investigative journalism in society, and freedom of speech is protected. However, journalists and other publishers are not exempt from liability for defamation where a publication contains factually incorrect statements that cause serious harm to an individual’s reputation.

The Defamation Act 2013 seeks to strike a careful balance between two directly competing principles. On the one hand, individuals are entitled to protect their reputation from false and damaging allegations. On the other hand, the media must remain free to investigate and report on matters of legitimate public concern. 

What is the Public Interest Defence in Libel Cases?

Under section 4 of the Defamation Act 2013, a publisher will not be liable for defamation (libel or slander) if they can demonstrate that the statement complained of was, or formed part of, a matter of public interest; and the publisher reasonably believed that publishing the statement was in the public interest. 

Traditionally, journalists working in the media (primarily in newspapers) had been able to rely upon the Reynolds defence, but the Defamation Act of 2013 enshrined this right in law. 

When does the Public Interest Defence apply?

In determining whether the defence applies, courts will examine whether the publisher acted responsibly when gathering and publishing the information. 

Successfully using the defence of ‘public interest’, the Act requires a defendant to a claim for defamation to pass a three-stage test: 

1. the statement must be on a matter of public interest; 
2. the defendant must believe publication was in the public interest; and 
3. that belief must be reasonable. 

A further important point was highlighted in the case of Banks v Cadwalladr, where the Court of Appeal made clear that the public interest defence is not assessed only at the moment a statement is first published. Circumstances can change, and if new information emerges that undermines the basis of an allegation, it may no longer be reasonable for a publisher to continue repeating or maintaining the statement. This is particularly important in the digital age, where articles and videos can remain online for many years and may continue to cause significant reputational harm if they are not reviewed or corrected.

When can the public interest defence fail?

The public interest defence is not a "get out of jail free" card in defamation claims and the public interest defence can be difficult and complex to run. It does not always succeed. The defence could fail for example:

• where media coverage creates the impression that an individual has been found guilty of a serious criminal offence when this is not the case. For example, there have been instances where individuals accused of serious offences, including sexual assault, are reported on in a manner that implies guilt even where a court later finds them not guilty.
• reporting that presents allegations as established facts may fall short of the standards expected of responsible journalism. In the digital age, the consequences can be significant and online articles often remain searchable for years, meaning that individuals may find their names repeatedly linked with damaging and inaccurate information.
• if a defendant was aware of separate facts which they fail to report upon, which make it impossible for what they have published to be true, for example, if someone published online that an individual had stolen something from their home, but the theft took place when the individual accused was not in the country and the defendant was aware of that.

Can anyone use the Public Interest defence?

The public interest defence is open for anyone to use, if they are accused of publishing defamatory material. It can therefore be used by anyone who has published material on a social media platform, influencers, and private individuals, not just professional journalists. 

Where private individuals seek to rely on the public interest defence, they have to pass the same three stage test as a professional journalist, for the defence to succeed. 

What can you do about untrue reports online?

Where inaccurate or misleading reporting appears online, the first step is often to notify the journalist or publisher and provide them with the correct position, ideally supported by evidenec. Responsible publishers may amend, clarify, or remove the material once the issue is brought to their attention.

However, if a publisher refuses to correct or remove defamatory content despite being made aware of the inaccuracies, their ability to rely on the public interest defence may be weakened. In such circumstances, individuals may have grounds to pursue legal remedies, including seeking an injunction to secure the removal of the article, claiming financial compensation for the harm caused and taking other steps to mitigate the ongoing reputational harm caused by its continued online presence.

At Samuels Solicitors, we have a dedicated team of professional lawyers who are experienced in helping clients bring and defend defamation claims. We also assist individuals in breaking the link between their name and damaging online articles appearing in Google search results, helping to prevent further reputational harm.

If you want legal advice about using the public interest defence in a libel case, we will be able to help you. Contact us for a no obligation discussion with one of our experts about how we can help.