BBC presenter Chris Packham awarded £90,000 in libel damages

Background

The claimant, Chris Packham, is a naturalist, campaigner and television presenter, including with the BBC. He is a trustee of an animal sanctuary operated by the Wildheart Trust. Mr Packham brought the claim in defamation against three individuals in relation to online publications on Country Squire Magazine (CSM) and on social media.  

The publishing defendants responsible for the publications were:

• Dominic Wightman, the editor of CSM, who accepted responsibility for each of the publications, including on social media; and
• Nigel Bean, an IT consultant who accepted responsibility (with Mr Wightman) for the publications in CSM attributable to him, and for his social media postings.

The third defendant, Paul Read, was a retired computer programmer, who had proof-read four of the CSM articles. Mr Read disputed any legal responsibility for the articles, although he did admit to sending certain retweets.

The publications made three allegations of dishonesty against Mr Packham. He was said to have:

1. dishonestly raised funds from the public by stating that tigers coming to the sanctuary had been rescued from a circus where they had been mistreated, whereas Mr Packham knew the tigers had been well treated and donated by the circus;
2. dishonestly sought to raise funds for the sanctuary at the start of the Covid-19 pandemic by appealing for donations while concealing that the trust was due to receive, or had received, a £500,000 insurance pay-out; and
3. lied when he stated that gamekeepers on Scottish estates doing muir burns (i.e. burning off old heather to encourage new growth) were burning peat during the 2021 UN Climate Change Conference in Glasgow, when he knew that was untrue.  

Legal issues

Mr Packham had to show that:

1. the defendants were legally responsible for the publications (within the meaning of section 1 of the Defamation Act 1996); and
2. the statements referred to him and were defamatory, including that they had caused (or were likely to cause) serious harm (for the purposes of section 1(1) of the Defamation Act 2013).

At the start of the trial, the publishing defendants relied on statutory defences of truth (under section 2(1) of the Defamation Act 2013) and of publication on a matter of public interest (under section 4 of the same Act), in relation to all of the publications. Yet, during the course of the trial, the truth defence was abandoned for the second and third allegations.

As to the third defendant, the key legal issues were:

1. whether he was an “editor” of the relevant articles on CSM;
2. whether he was an “author” or “editor” of his retweets; and
3. whether his retweets had caused any serious harm.

Section 1(2) of the Defamation Act 1996 defines:

• “author” as “the originator of the statement”; and
• “editor” as “a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it”.  

The third defendant denied responsibility in each case. In the alternative, he submitted that the case on the retweets should be struck out as an abuse of process under the Jameel basis.^[2]

Dismissal of claim against the third defendant

Responsibility for publishing

Mr Justice Saini found that the third defendant’s comments on the articles were all of a proof-reading nature. He had no involvement in the substance or defamatory meaning of the articles, nor in the decision to publish them. The second defendant could reject any comments that he did not like. Further, there was no contractual relationship with CSM, and the third defendant had not been remunerated for his contribution. Accordingly, he was not an “editor” of the CSM articles.

As to the third defendant’s retweets, publication was admitted, but the dispute was whether he was to be classified as a primary or secondary participant in his acts of retweeting. He retweeted CSM’s tweets to his own followers, which was submitted to make him an “author” or “editor” of CSM’s tweets. It was noted that there is no authority on whether retweeting makes the retweeter an “author” or “editor” of the statements complained of. In light of the detailed submissions on the implications of holding retweeters responsible on that basis, Mr Justice Saini took the view that this issue should only be resolved in a case where it is necessary. Here, it was not necessary, because the claim clearly failed on serious harm.

Serious harm

Where a claimant sues on a number of publications, it is necessary to prove serious harm for each. So Mr Packham had to establish that the particular retweets had caused serious harm. An original tweeter can be responsible for serious harm caused by retweets, as that is a foreseeable consequence of tweeting. Yet the relevant harm in relation to a retweet is limited to the harm caused by the dissemination of the tweet as a result of the retweet.

Mr Packham submitted that serious harm was a threshold issue, with the implication that it was easy to satisfy. But Saini J proceeded on the basis that serious harm is an important control mechanism on the scope of defamation liability, which needs to be proved with cogent evidence. In this instance, he was not satisfied of serious harm merely as a result of the nature of the allegations: the retweets were a small fraction of the entire circulation. Accordingly, he found that there was no proper evidential basis for inferring that the retweets caused any serious harm to Mr Packham’s reputation.

Given that decision, there was no need to deal with the Jameel abuse argument that had been raised. Saini J observed that, once the trial has been reached and indeed completed, it would bean odd case in which a judge could decide that there is so little at stake that the further expenditure of resources would be disproportionate. If, however, an application had been made earlier in the claim (on the retweets), a Jameel argument would have had a substantial chance of success.

Decision on the publishing defendants

Truth

A defence of truth was maintained only for the first allegation, i.e. that Mr Packham knew that the tigers had been well treated. The issue was one of dishonesty and fraud alleged against Mr Packham. So it was his subjective and honest belief at the time when he made his statements that were relevant. After a detailed consideration of the evidence, Saini J found that Mr Packham did not lie, and that each of his own statements were made with a genuine belief in its truth. There was no fraud of any type committed by him in making the fundraising statements referred to in the first allegation.

The publishing defendants had not merely alleged a lack of care or negligence by Mr Packham, or that questions had arisen in relation to the fundraising. They had made the most serious allegations of actual fraud and dishonesty. Their evidence in support of that focused on material (such as a report that the tigers had been well cared for) that Mr Packham had not been aware of when making his own statements. Accordingly, the truth defence failed.  

Public interest

For the public-interest defence to succeed:

1. the statements must have been on a matter of public interest;
2. the publishing defendants must have believed that publishing the statements were in the public interest; and
3. that belief must have been reasonable.  

It was common ground between the parties that the statements were on a matter of public interest. So the focus was on the publishing defendants’ belief, and on whether any such belief was reasonable.

First Allegation: knowing the tigers were well treated

Following a detailed review of the evidence, the judge found that the publishing defendants had believed that publishing this was in the public interest. They had considered the issue of fundraising for the care of animals, the status and role of Mr Packham as a BBC presenter and vice-president of the RSPB, and the general subjects of the articles as matters of public interest.

Yet the defence failed on the question of whether that belief was reasonable. The judge found that the publishing defendants had plainly targeted Mr Packham based on an agenda against him. As a result, they approached facts that might have suggested (at most) that questions might be asked about the accuracy of the fundraising statements, as instead proving fraud and dishonesty. There was some form of investigatory work by the second defendant, but the product of that investigation did not even arguably support the allegations made. No opportunity was given for Mr Packham to comment, and Saini J found this was because Mr Packham’s answer might contradict an agenda set on alleging fraud.

Further, the publishing defendants were piqued by Mr Packham’s letter of claim, and any investigative journalism quickly gave way in the following articles to increasing hyperbolic and vitriolic smearing of Mr Packham, with further unsubstantiated allegations of dishonesty.  The tone descended into sinister threats and outright vitriol, including offensive references to Mr Packham and abuse of his solicitors. The publishing defendants doubled down on further serious allegations of fraud, as opposed to responsible journalistic behaviour. The clear picture from the evidence was the overriding aim to pursue an agenda or campaign against Mr Packham and those who share his views. Accordingly, the public-interest defence also failed.  

Second allegation: concealing the insurance pay-out

Saini J did not accept that the publishing defendants considered publication to be in the public interest, or that (even if they had that belief) it was reasonable. The second defendant gave no evidence in such respect, and he had not addressed his mind to it. The first defendant’s evidence suggested no investigation and, in fact, real doubts as to whether he should have made the allegation. Overall, there was no investigation and no chance for Mr Packham to comment, and this was another example of an allegation thrown into an article as part of a campaign or agenda against Mr Packham.

Third allegation: lying about muir burns burning peat

This failed as the judge again found that the publishing defendants did not reasonably believe that publishing the statement was in the public interest.  The allegation was introduced gratuitously as part of the campaign against Mr Packham. The publishing defendants had copied and pasted a quote from the Scottish Gamekeepers Association with no investigation into its veracity. There was no proper basis for alleging dishonesty, and it was not reasonable to publish such a serious allegation on a contested environmental issue without investigation or opportunity to comment.

Damages

Mr Packham was entitled to damages for each of the publications. Mr Packham submitted that the extraordinary level of vitriol displayed towards him and his solicitors should significantly aggravate the damages. Saini J declined to make a separate award in relation to aggravation, but factored that into the award of general damages.  

The first area of conduct reflected in aggravation was an allegation that Mr Packham forged a handwritten death-threat letter. While the defendants had obtained an expert report in support, the sample of Mr Packham’s handwriting used was not actually his. Even after that had been made clear, the allegation was maintained until being withdrawn on the third day of trial. Saini J found the publishing defendants responsible for the fact that an obviously unsustainable allegation was made and pursued into trial.

The second area of improper conduct was an indication in correspondence that the defendants intended to put on the record allegations (among others) that Mr Packham was a “rapist, a bully, and a pervert”.  The judge found that there was not a shred of evidence in support of those offensive allegations: they were made to scare off Mr Packham from seeking recourse in a public hearing for the libels.

Overall, Saini J considered the extent of publication, the nature of the allegations, the attempts to seek Mr Packham’s dismissal from the BBC, Mr Packham’s evidence of the effect on him, and the findings on the additional conduct. Mr Packham was awarded £75,000 for the first allegation, £10,000 for the second allegation, and £5,000 for the third allegation.

Comment

The obvious agenda that had been pursued against Mr Packham prevented the publishing defendants from showing that they had acted responsibly in relation to the publications. Saini J had noted that the first defendant appeared to have lost all objectivity when it came to Mr Packham and could not see any act of Mr Packham as being anything other than underhand or dishonest.  

If the defendants had made allegations less serious than fraud or dishonesty, and if a proper investigation could be shown, including giving Mr Packham an opportunity to comment, the public-interest defence might have had better prospects. Yet, in circumstances where extremely serious allegations were made with little to no factual basis, the defence could not succeed.

Article written for Entertainment Law Review.‍