Missing in action – journalist pays for failure to file defence in "Sex for Grades" libel case

The claim turned on a 2022 article falsely alleging that Mr Northcott had an inappropriate relationship with a Nigerian woman working on the documentary as an undercover reporter, and that he had treated her favourably as a result and so abused his position. The defendant also publicised the allegations on social media and goaded the claimant to sue, insisting that he would defend the claim.

Background

Parties

The claimant, Charles Northcott, is a highly respected and award-winning investigative journalist and filmmaker who works for the BBC.

The defendant, David Hundeyin, is also an investigative journalist, who has written for international publications, including Al Jazeera, CNN and the Washington Post. He is believed to be a Nigerian citizen, and he published a newsletter via the online subscriber publishing platform Substack.

Documentary

In 2018, Mr Northcott, working for BBC Africa Eye, started investigating allegations that university professors in Nigerian universities were offering to improve female students’ grades in return for sex. He assembled a team of journalists in Africa to research the subject matter in Nigeria and Ghana, which included Ms Ogechi Obidiebube, who worked at the Lagos bureau of the BBC. Ms Obidiebube was joined by nine freelancers, including Ms Nkiru Mordi, who was introduced to the claimant by Ms Obidiebube, and who had worked as a radio presenter for the only women’s radio station in Nigeria, WFM. Ms Mordi also had personal experience of the issues being investigated, having experienced sexual harassment herself as a student.

BBC Africa Eye commissioned the documentary, and filming took place between February and June in 2019. Ms Obidiebube worked with the team as one of the undercover reporters, posing as a student and obtaining numerous hours of footage of a lecturer at the University of Lagos sexually harassing her. Ms Mordi also obtained footage of harassment by two lecturers at the same university and two academic staff members at the University of Benin. The claimant and his co-producer proposed that Ms Mordi should be the onscreen presenter given her experience at WFM and her personal connection to the story, and because risk assessments showed that there were fewer personal risks to her in the event of a backlash. After conducting further risk assessments, the decision was taken that only Ms Mordi would be identified in the documentary. Ms Obidiebube was later identified by her name at her request. These decisions, as well as who was engaged by the BBC and what credits were given, were taken by the executive producers, editor and commissioning editor of the programme, although the claimant had some influence in his role as director and co-producer.

The documentary was released in October 2019 and was watched by 11.4 million viewers on BBC Africa’s YouTube channel. The largest number of viewers were in Nigeria, USA and the UK.

Article

On 12 September 2022, Mr Hundeyin approached the claimant for comment in relation to an article that he was writing about alleged “managerial malfeasance at BBC Africa”, including allegations that Ms Obidiebube had been sidelined in the making of the documentary, and that the claimant (who is married) had had an inappropriate relationship with Ms Mordi.

The claimant and the defendant corresponded by email on 12 and 13 September 2022. On or around 26 September 2022, the defendant published an article via his Substack newsletter entitled "Journalism Career Graveyard: The BBC And Its West Africa Problem" to around 42,000 subscribers.

As well as publishing the article, the defendant posted numerous tweets on Twitter (now X) in September and October 2022, stating that he stood by his article and goading the claimant and Ms Mordi to sue him. At the time, the defendant had more than half a million followers on Twitter, many of whom worked for the BBC and other media organisations in the UK.

The defendant did not disclose, either in the pre-publication correspondence or in the article, that he had at some point in 2021 begun a relationship with Ms Obidiebube and had married her in August of that year.

Proceedings

The claimant sent a letter of claim on 31 January 2023. The defendant’s response reiterated that he stood by his story and encouraged the claimant “to take the next legal steps forthwith” and described the threats of legal action as “obvious attempts at SLAPP litigation”.

The claimant issued proceedings on 26 September 2023 and served them on the defendant via email (with permission) on 2 November 2023.

Despite all the posturing in his tweets and email response to the claimant’s letter of claim, the defendant did not file an acknowledgement of service or a defence.

The claimant consequently applied for judgment in default, which was granted on 24 June 2024 by Master Stevens, who also gave directions for a remedies trial.

On 29 July 2024, Mrs Justice Collins Rice granted a final injunction against the defendant, which prohibited him from repeating the defamatory allegations and required him to stop publishing the article in the UK on Substack or any other platforms where he had published it (or caused it to be published). The defendant did not, however, comply with that order.

Issues

Mr Justice Julian Knowles heard the remedies trial on 8 October 2024 and addressed the following issues: (a) proceeding in the defendant’s absence; (b) quantum of damages; and (c) whether to make orders under sections 12 and/or 13 of the Defamation Act 2013 (i.e. requiring the defendant to publish a summary of the judgment, and/or requiring website operators to remove the part of the article complained about).

Absence of the defendant

Knowles J considered the discretionary power of the court to proceed with the remedies trial in the absence of the defendant under rule 39.3 of the Civil Procedure Rules. He held that it was proper to proceed in light of the fact there was evidence that the defendant had notice of the hearing (and previous hearings) and had been served with the relevant documents. The judge drew the inference that the defendant had “deliberately chosen” not to try to defend the proceedings from the fact that the defendant had initially engaged in pre-action correspondence and subsequently fallen silent.

Quantum

The claimant was awarded £95,000 in damages and aggravated damages, in light of the defendant’s conduct after publication of the article (both by email and on social media).

Knowles J considered the well-established principles of how damages should be assessed in libel claims, referring to Mr Justice Warby’s summary in Barron v Vines^[2], among other sources. In summary the judge reiterated that the purpose of damages is:

1. to compensate the claimant for the damage done to their reputation;
2. to vindicate the claimant; and
3. to take into account the distress, hurt and humiliation caused by the publication.

The judge also identified the numerous factors that have a bearing on the level of damages that is awarded. Most relevant to this case was that the libel was a direct attack on the claimant’s professional integrity and had had a detrimental impact on his career. As the judge noted, the claimant “was falsely accused of doing the very thing he was investigating in the making of the programme, namely, abusing a position of power in return for sexual favours”.

There were numerous important and high-profile individuals in the media who followed the defendant on social media and so were likely to have read the article. Further, the judge took into account that the claimant could point to numerous examples of individuals in the industry who had read the article and (likely) believed the allegations, approaching either him or colleagues about them. In addition, the BBC conducted an internal investigation into whether or not the allegations were true, which excluded the claimant, although it ultimately cleared him. All of these incidents contributed to the harm suffered by the claimant and so were factored into the damages award.

Other relevant factors included: (a) the allegations had “permeated throughout the BBC in London”; (b) the defendant was considered to be an authoritative and credible journalist, and so more likely to be believed; and (c) the article was published to a substantial number of readers via Substack itself and on social media to the defendant’s more than half a million followers (of whom 60,000 were estimated to be in the jurisdiction).

Orders under sections 12 and 13

The court also made orders under sections 12 and 13 of the Defamation Act 2013, requiring the defendant to publish a summary of the judgment, and requiring website operators to remove the part of the article complained about. An order under section 13 was deemed appropriate in circumstances where the defendant had not been engaging in the proceedings and had already failed to comply with the injunction to remove the article.

Comment

This case exemplifies the predicament that a claimant faces where false and defamatory statements are made online by an individual defendant apparently domiciled outside of the jurisdiction. The costs of litigating will presumably have been significant, and given that the defendant refused to engage and failed to comply with court orders (including an injunction), the claimant’s likelihood of enforcing the judgment and recovering his costs seems to have been small. Yet, given the extent of damage that the allegations appear to have caused to the claimant’s professional reputation, obtaining a favourable judgment itself may well have been the main motivation for bringing the proceedings.

Interestingly, although there was no trial on the merits – due to the absence of a defence or any engagement by the defendant – the judge stated that it “should be clearly understood by all reading this judgment that these very serious allegations were wholly untrue”, and that an “obvious inference that can be drawn” is that the defendant “knew they were false, and could not be defended”. That seems to be an unusual step where judgment in default was granted, and where no defence of truth was ever considered. Given the defendant’s total lack of engagement, the claimant must have welcomed the judge’s conclusions as powerful vindication.

Article written for Entertainment Law Review.