Defamation Defences in Practice: Key Takeaways from the case of Noel Clarke v The Guardian

As has been widely publicised in the media, the well-known actor Noel Clarke lost his libel case against the Guardian earlier this year after he sued the paper for printing allegations of sexual misconduct.

The Doctor Who and Kidulthood star initiated libel proceedings against Guardian News and Media (GNM) after the news outlet ran a series of stories in 2021 claiming he had used his power in the film and TV industry to prey upon and harass women.

During the six-week trial, more than a dozen women testified that they had personally experienced misconduct by the actor and director.

In the High Court judgment handed down at the end of August, Mrs Justice Steyn rejected Mr Clarke’s claims and ruled that GNM had succeeded in both its defences: truth and public interest.

At the end of September, Noel Clarke was ordered to pay GNM an initial £3m towards its legal costs (which were estimated to be in the region of £6m).

Here we consider these two defences in a little more detail.

Truth Defence

The Law

GNM was successful in pleading the truth defence. Truth is an absolute defence to a defamation claim – if the defendant can prove, on the balance of probabilities, that their statement was truthful, the defamation claim fails^[1]. The rationale behind this is that a claimant should not be entitled to recover damages for injury to reputation that has, in essence, been merited.

In practice, the court assesses the truth defence in three steps:

• identify the ‘natural and ordinary meanings’ of the publication(s);
• determine the defamatory imputations they convey;
• assess whether the essential ‘sting’ of those imputations is proved^[2].

The burden is on the defendant to prove that the defamatory statement was true.

The Facts

In this case, the core of that question was whether the sexual harassment reported by GNM did in fact occur. Importantly, some of the alleged events took place up to 20 years ago. In some cases, that may create difficulties with recollection, and pose a challenge for the defendant in proving that the alleged events did take place. However, Mrs Justice Steyn found unequivocally for GNM. All eight of the articles published by GNM were found to be “substantially true”, and the witnesses for GNM were determined to have given “honest and reliable evidence”. Steyn found, based on the witness and other evidence that there were “strong grounds to believe that the claimant is a serial abuser of women”.

In establishing whether the GNM’s articles were truthful, the court examined over 15 years’ worth of evidence. That involved revisiting, and hearing first hand from the witnesses, allegations of unwanted sexual contact, kissing, groping, taking and sharing explicit pictures and videos. Challenging these allegations came with significant added risk to Mr Clarke. Over a six-week trial, in a highly public forum, the court heard from twenty-six witnesses and made detailed findings that, in substance, resembled the scrutiny of a sexual assault trial. One would therefore think that a claimant would be extremely confident in their innocence to challenge these statements. To the contrary, Steyn found that Mr Clarke was “not a credible or reliable witness”, and showed a “pattern of only being prepared to admit that which was established by documentary evidence”.

The Public Interest Defence

The Law

GNM was also successful in raising what is known as the public interest defence (as set out in section 4 of the Defamation Act 2013). The public interest defence is successful where a defendant can show the following:

Firstly, that the statement complained of was, or formed part of, a statement on a matter of public interest. Whilst ‘public interest’ is a familiar concept at common law, there is no single definition that would suffice for all purposes. In deciding what may be considered to be ‘in the public interest’, the courts have rejected the concepts of “newsworthiness” as too wide and “what the public need to know” as too restrictive. The authorities make allowance for editorial judgment in deciding whether a story contains material that is in the public interest. Matters of public interest are of “potentially wide compass save that they exclude purely personal or private matters”: Harcombe v Associated Newspapers Ltd [2024].

Secondly, that the defendant reasonably believed that publishing the statement complained of was in the public interest. In determining ‘reasonable belief’, the court must have regard to all the circumstances of the case, and must make such allowance for editorial judgment as it considered appropriate. The assessment of reasonable belief will involve not just an assessment of the publisher's state of mind. It will also involve an objective assessment of the reasonableness of the publisher's belief. Relevant factors that the court may consider include:

• Attempts taken to verify the truth of what is being published.
• The nature and status of the sources of the information.
• The extent to which the claimant was given an opportunity to respond to or comment on the allegations.

The Facts

In this case, the court focused on the first article because it was effectively conceded that if the defence succeeded in respect of the first article, it should succeed on the subsequent articles too (although in any event, the claims for the second to eighth articles failed due to Mr Clarke’s inability to demonstrate serious harm).

During the trial, Ms Viner (the Editor-in-chief of the Guardian) gave unchallenged evidence that she personally took the decision, with the assistance of colleagues, that it was in the public interest for the GNM to publish the first article. She expressed her belief that “sexual harassment is an important subject for the Guardian to report on”. She gave a detailed explanation of her involvement in and knowledge of the progress of the investigation. On the first question, Steyn held that Ms Viner believed the first article was on a matter of public interest, and if it was necessary to look beyond her belief, the other editors and reported involved in the story all believed that publication was in the public interest too.

Turning to the second question (i.e. whether this belief was reasonable), Mr Clarke contended (amongst other arguments) that GNM did not believe, and could not honestly have believed, that publication of the first article was in the public interest given what he described as “sheer malice” of intermediaries and sources, many of whom are said to have had “axes to grind”. The judge sided with GNM in finding that ‘the belief was undoubtedly reasonable’. In reaching her decision, she gave regard to matters such as steps taken to verify the matters published, the extent of the opportunity given to Mr Clarke to comment, and the tone and presentation of the article. In particular, two notable considerations were as follows:

• That Mr Clarke's statement for publication was included high up in the article. “The positioning of Mr Clarke's individual responses to each allegation provides balance and enables the reader to form their own view of the credibility and significance of the Guardian's findings. The Guardian excluded from publication matters which they considered were properly matters of the private lives of Mr Clarke, his professional associates and his family.”
• That the factual accounts of GNM’s sources are presented in “a measured and accurate way” without being “exaggerated or sensationalised”.

Conclusion

Whilst GNM succeeded on both defences, establishing either one would have been a complete answer to the claim. This case represents not only a significant victory for GNM but also a useful reminder of how the defences of both truth and public interest operate in practice, and the wide range of factors that the court will consider in determining whether these defences are met.

This case also serves as a stark reminder of the risk of a defamation trial. Mr Clarke set out to reclaim his reputation, instead, the process tested it to destruction. In choosing a public forum to settle this matter, Mr Clarke invited a public reckoning far harsher than any Guardian headline. GNM was granted its truth defence; Mr Clarke lost far more than his claim.

^[1] The Truth Defence is governed by Section 2 of the Defamation Act 2013. S2(1): “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

^[2] See Turley v Unite the Union [2019] EWHC 3547 (QB) at paragraph 125.