What lessons can be learned from the Packham libel trial?
We don’t normally cover defamation cases on this blog, but the recent judgment by Mr Justice Saini in litigation between the TV personality and naturalist Chris Packham and three citizen journalists (Packham v Wightman & Ors) provides some useful insights on liability and damages, among other topics.
This well-publicised case was brought by Packham against the three individuals (Dominic Wightman, Nigel Bean and Paul Read) over several articles and videos published in an online publication called Country Squire Magazine and on Twitter.
The articles accused Packham of dishonestly raising funds and publishing untruths. Some of the articles were published after Packham’s solicitors sent letters of claim, and the defendants also published other material which was described as puerile, offensive and damaging.
The judge found the first two defendants liable and ordered them to pay £90,000 in damages with costs to be assessed. The third defendant, Read, argued that he was not responsible for the defamatory content and was not an editor, and the judge agreed, saying: “I am satisfied on the evidence that all relevant discussions about the content and decision to publish were between D1 and D2 without any involvement of D3.”
Despite having a byline on the articles, Read was essentially a proofreader; it was the first defendant who decided what to publish and there was no contractual relationship between them; Read was not remunerated and had no financial interest in the website; he had no access to the content management system; and he was not expected to be available to work for the website. Moreover, none of his recorded edits had any impact on the defamatory meaning. The judge concluded:
“I find that D3 was not an editor. He had no editorial or equivalent responsibility for the statements complained of or the decision to publish them. Even if one was looking at D3's acts from the perspective of joint liability under general principles of tort law, it is hard to classify his conduct as anything other than a de minimis or wholly trivial contribution to the commission of the tort by D1 and D2.”
The judge also found that there was “no proper evidential basis” for inferring that Read’s retweets on Twitter caused any harm (let alone serious harm) to Packham’s reputation.
By contrast, the judge found that the claims against the first two defendants succeeded, and in particular he rejected the defences of truth and public interest. On the latter, he said:
“The approach revealed by the evidence is that rather than approaching the task with an investigative mind, these Defendants targeted Mr Packham as a person against whom they had an agenda. I underline that having an agenda does not, in and of itself, disqualify a person including citizen journalists such as D1 and D2 from being able to benefit from a public interest defence. Indeed, in general terms many publications and professional journalists approach stories with what might be called an agenda. However, the agenda adopted by D1 and D2 meant that they approached what might be facts suggesting (at the very highest) that questions might be asked about the accuracy of the fundraising statements, as proving fraud and dishonesty on the part of Mr Packham.”
The judge said the damage to Packham was aggravated by two aspects of the defendants’ conduct. The first was their unsustainable allegation that Packham had forged a death threat made to him – an allegation which was withdrawn on the third day of the trial but still not conceded by the first defendant in his oral evidence. The second was other wholly false and offensive allegations made in correspondence, including that Packham was a “rapist, a bully, and a pervert”, which the judge found were designed to scare off Packham. (The first defendant also sent offensive correspondence to one of Packham’s lawyers.)
What does this mean?
Claimants in libel actions will often sue several parties, including author, editor, publisher, printer and even distributor. In this case, the judge distinguished between the first two defendants, who had clearly authored and published the defamatory material and were therefore editors, and the third who had no role in the substance. This is a useful and practical distinction when it comes to material published online.
Moreover, the judge has provided some guidance indicating that re-tweeting a defamatory tweet will not necessarily lead to liability: it will depend on context, such as any additional comments, the nature and extent of the audience and other interactions.
A final lesson for litigants is that if, like the defendants in this case, you face a serious claim for defamation then you should not repeat the libel, make further unfounded allegations or send gratuitously offensive comments about the claimant and/or their lawyers. Not surprisingly, judges look very poorly on such behaviour and may – as in this case – take it into account when awarding damages.