Claire Gill writes for Inforrm's Blog Case Law, following a complex preliminary issues trial where Mr Justice Nicklin handed down judgment on 25 June 2024 in the case of Harcombe and Kendrick v Associated Newspapers [2024] EWHC 1523 (KB) and dismissed a public interest defence advanced by the publishers of The Mail on Sunday and its health editor, in a libel claim brought against them by Dr Zoë Harcombe and Dr Malcolm Kendrick.


The ruling contains a meticulous analysis of the public interest defence under s.4 Defamation Act 2013, and provides important guidance for media practitioners and journalists, in particular in how to handle Rights of Reply in the run up to publication.


This article was first published on Inforrm’s Blog on 10 July 2024


Overview

The case relates to articles published in March 2019, leading with the headline “Deadly propaganda of the statin deniers”. The articles, expressed to be part of the newspaper’s “Fight Fake Health News” campaign, labelled the Claimants “statin deniers”, who were purveyors of “deadly propaganda” and “fake news” about statins. Highly critical statements made by the then health secretary, Matt Hancock, appeared prominently in the coverage, including a headline “Statin Deniers are putting patients at risk, says Minister” and including the statement containing the words “These kinds of pernicious lies have no place in our NHS”. (“the Hancock Statement”).


The way in which the Hancock Statement was used in the published articles, and its impact on their defamatory meaning, was the subject of intense scrutiny in the Judgment.


The case was acknowledged by the trial Judge in an earlier hearing to be “the most significant piece of defamation litigation that I have seen in a very long time”. It was so complex, in fact, that the issues were split for determination, and the case is not finally concluded.


The court was not at this stage determining the truth or otherwise of the published allegations and it was not adjudicating on the merits of, or who is actually “right” in the debate about (the efficacy and risks of taking) statins. The question of ultimate liability, and any damages to which the Claimants may be entitled, will be for another hearing if not resolved between the parties in the meantime.


The Findings


The Judge

  1. Dismissed the public interest defence advanced under s.4 Defamation Act 2013 for both the original and continuing online publication of the articles.
  2. Dismissed the statutory qualified privilege defence in respect of the Hancock Statement.
  3. Upheld the statutory qualified privilege defence (under s.6 Defamation Act 2013), relied on by the Defendants in relation to 3 extracts within the articles that referred to a scientific paper published by the LSHTM (London School of Hygiene and Tropical Medicine). (A further reference to the LSHTM paper was found not to be fair or accurate [500] and so the defence failed for that part). The case is the first occasion on which the application of s.6 has been considered since its enactment. The Judge analysed the purpose of the protection afforded under s. 6 to the reporting of peer-reviewed scientific or academic journals, and found that “having established the academic or scientific value of the statement, its publication to the wider public [including in the press and media] should be privileged and thereafter available to contribute to important public debate” [347]
  4. Made rulings on meaning in relation to the various publications in hard copy and online (and made findings about whether or not each individual article should be treated as one whole piece for the purpose of that assessment), and ruled on whether the publication was an expression of opinion or a statement of fact. In making his ruling on meaning, because the Defendants relied on a defence of statutory qualified privilege in relation to parts of the articles, the Judge took account of the Court of Appeal ruling in Curistan-v- Times Newspaper Ltd [ 2009] QB 231. This technical area is a separate topic for analysis and not covered in this post, but, having rejected the statutory qualified privilege defence in relation to the Hancock Statement that had referred to “pernicious lies”, the use of that statement was a key part of the Judge’s analysis on meaning. In essence he found (see [516] for the ruling on the meaning of the hard copy articles) that the articles, in their natural and ordinary meaning, “very clearly conveyed the allegation that the Claimants’ statements [about statins] were lies” [525]; in other words that they were dishonest, and this was an allegation of fact. Not only was this the natural and ordinary meaning, but the Judge was satisfied that the Second Defendant, in his own understanding of the meaning of the Articles “recognised that the Articles could be read as alleging that the Claimants knew that their statements about statins were false. This meaning emerges, most significantly and in my judgment inescapably, from the allegations that the Claimants..were promoting “pernicious lies” [250 (4)].
  5. Found that the Second Defendant, the journalist, did not hold the opinions that the court has found the publications to bear.
  6. Dismissed the Claimants’ case on malice insofar as it arose (in reply to the defence of statutory qualified privilege found to apply in part to the LSHTM paper). The Judge in his ruling made it clear he did not find the Second Defendant to be dishonest or malicious.


The findings mean that the Defence as currently formulated, and subject only to a successful appeal, “cannot be maintained” [562].


Public Interest and the Conduct of the Journalist

In this post we focus on the way in which the Judge approached his task of determining whether or not the Defendants could defend the case on the basis of a public interest defence under s.4 Defamation Act 2013.


The basis on which the Judge found that the public interest failed was founded on his analysis of the newspaper’s conduct before publication, including in how the Second Defendant treated the Claimants’ responses to the ‘Right of Reply’.


After having found that the first limb of the s.4 Defence was met, the key issue that the court was resolving was whether or not the Defendants reasonably believed that it was in the public interest to publish the articles. In that context, the court assessed the journalism that led to publication of the Articles: “what inquiries were made, what did [the journalist] know, what information did he receive, what opportunity did he give to the Claimants to comment and respond to the allegations to be made against them and how ultimately did he present all of this material in his Articles?” [40 (3)].

In his summary of the legal principles relating to the public interest defence [270-291], the Judge said [279] “In assessing the reasonableness of a defendant’s belief that publication was 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. Events that post-date publication are unlikely to have any real bearing on the issue”. Given this, the Claimants did not give any evidence at the trial. The Judge re-stated the need to make allowance for editorial judgment, citing the principles summarised in Banks-v-Cadwalladr [2022] 1 WLR 5236.


In relation to the factors to be taken into account in assessing the public interest defence, the Judge noted that the ten so-called Reynolds factors “although not to be regarded as any sort of checklist- “may well be relevant to whether the defendant’s belief was reasonable”- citing Serafin -v- Malkiewicz [2020] 1 WLR 2455 [282].


The Judge ruled:

  • “Whilst there is an important area for editorial judgement in what is reported in any article, it is not in the public interest for a publisher to misstate (or ignore) the evidence it has available. That remains the case even if the underlying material or evidence is complex” [414].
  • “This was a controversial subject, upon which it was obvious ..that there were competing views. There was a longstanding, and ongoing, public dispute about the benefits of statins, particularly when measured against potential side-effects; the ‘statin debate’.” [415 (1)].


He noted what he considered to be the important circumstances of the case [415], and stated his conclusions [456- 461], finding [457] “There is perhaps a palpable irony in the fact that the Defendants, in Articles that so roundly denounced those alleged to be the purveyors of misinformation, so seriously misinformed their own readers” and [458] “Most seriously for the Defendants’ public interest defence, I have found that [ the journalist] did not believe that the Claimants were dishonest, yet this was the core allegation that the Articles made against them”.


In the course of the Judgment, the Judge found that there had been a number of key failings.


  1. The Judge noted significant gaps in the evidence, in particular in “the complete absence of” any contemporaneous record of how and on what basis the Second Defendant concluded that the publication was in the public interest , and that there was “no reliable record” of what public statements or claims said to have been published by the Claimants (i.e. their alleged “fake news”) the journalist had actually read or considered before publication. The Judge reiterated his observation in Lachaux-v-Independent Print Ltd [2022] EMLR 2, namely 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” [49].
  2. The Judge concluded that the use made of the Hancock Statement “gave readers a completely misleading impression of what Matt Hancock had said “ [167]. He described the use made of that statement, which “gave an entirely false impression of whether Mr Hancock had criticised [the Claimants] (he had not)” as a “serious error” [176].
  3. The representation of the patient “case study”, “Colin”, who was said in the editorial part of the coverage to have suffered a heart attack after stopping taking statins, having “heard they don’t really work” was “misleading” [132]. The Judge, having analysed the transcript of the journalist’s interview with “Colin”, found quotations attributed to “Colin” in the article to be inaccurate and the explanation given in the article as to why he stopped taking medication “materially misrepresented the totality of what Colin had said”. [132 (2)].
  4. The Judge was highly critical of the way in which the journalist had handled the pre-publication communications with Dr Harcombe and Dr Kendrick, saying “in the context of the public interest defence, perhaps the most serious omission of [the journalist] was his treatment of the Claimants’ right-to-reply responses” [236]. The Judge described the failure to share what Dr Harcombe and Dr Kendrick said in response with the experts with whom the journalist had worked closely, as “an astonishing failure” [242] and “incomprehensible”. [245] That failure properly to consider the responses and the materials in them (set out in full in the Judgment) was found to have “rendered the right-to-reply process hollow and superficial” [245]. He observed a number of points about the Right to Reply emails that the journalist sent to the Claimants (very shortly) before publication, noting that they contained omissions that “deprived the Claimants of a real understanding of the enormity of what was about to be published about them” [192] and “the right-to-reply emails failed to disclose the full nature and extent of the attack on the Claimants that was about to be published in the Articles…That had a direct impact on what the Claimants said in their responses [194].
  5. The Judge found that the journalist had allowed the experts who had helped him with his story (who were on the side of scientific orthodoxy about the benefits of statins) to have “had …a very significant (and in my judgment, undue) influence over the editorial process and the terms in which the Articles were ultimately published”, [233], including to accede to a request from one expert to change the text, leading to points that had been made by the Claimants and originally included in the draft Articles being removed [228].


In referring to the presentation of the statin debate, the Judge said: [442].


“Of wider significance, the public stance of the editor of the BMJ was perhaps the clearest indication that there was a significant, genuine and public debate as to statins between the two leading medical journals published in the UK. The Main Article referred to a “noisy group of sceptics”…and a “tiny minority of statin deniers”…(both of which would have been understood to have included the Claimants among their number). [The journalist’s] failure to acknowledge in the Articles that some of the criticisms being advanced by the Claimants were shared and being echoed publicly by the editor of The BMJ, particularly when both Claimants had placed express reliance on this fact in their right-to-reply responses, was a serious omission which again contributed significantly to the lack of overall balance.”

The Judgment will be essential reading for journalists seeking to rely on a public interest defence, and underlines the importance of engaging meaningfully with pre-publication enquiries. The fundamental note of caution comes with the Judge’s assessment of the consequences of the Defendants’ choice on how to present the articles: “A publisher has a freedom to choose the manner of its expression. But with that choice can come certain consequences, particularly in relation to the defences that may be available to defend any defamatory imputations conveyed by the publication” [416]. The journalist “held the pen” and chose what to include and what to ignore. He said “..these important choices bear not only on the meaning that the journalist can reasonably be expected to perceive the publication to bear, but also on whether, ultimately, it is reasonable to believe that the publication is in the public interest” [248].