03/02/2020 Economou v David De Freitas (Rev 1) [2016] EWHC 1853 (QB) (27 July 2016) 3. Mr de Freitas wanted the inquest into his daughter's death expanded to include an examination of the role of the CPS. The coroner initially ruled against this, but indicated he was prepared to hear argument on the matter. Mr de Freitas was advised to raise the issues publicly. As a result, in November and December 2014 he issued or authorised the issue of press statements, gave radio and TV interviews, and wrote an article himself. Articles appeared in newspapers and the BBC broadcast two items containing interviews with Mr de Freitas. 4. Mr Economou complains of libel in the two BBC broadcasts, and in five newspaper articles: four in The Guardian and one in The Daily Telegraph. None of these publications named Mr Economou but he contends that he could be, and was, identified as the subject of the words complained of. The meanings which he attaches to the various publications complained of differ in their detail, but the essence of his complaint is that he was accused of having falsely prosecuted Ms de Freitas for perverting the course of justice by accusing him of rape, when the truth was that he had raped her. 5. The truth or falsity of such allegations is not one of the issues at this trial, and nothing in this judgment should be read as a finding, or as expressing a view, one way or the other on that issue. There are five main issues as to liability: (1) whether Mr Economou was referred to by the publications complained of ("Identification"); (2) in one instance, whether Mr de Freitas is responsible for the publication complained of ("Responsibility"); (3) what if any defamatory meaning about Mr Economou was conveyed by the words for which Mr de Freitas is responsible ("Meaning"); (4) whether the publication of the statements complained of caused serious harm to Mr Economou's reputation ("Serious Harm"); and (5) whether Mr de Freitas is entitled to rely on the statutory defence for publication on a matter of public interest ("the Public Interest defence"). 6. The burden of proof on each of the first four issues ("the Cause of Action Issues") lies on Mr Economou. If he succeeds in showing a cause of action, the burden shifts to Mr de Freitas to establish the Public Interest defence. If Mr de Freitas fails in that, the issue of damages arises. 7. There is relatively little overlap between the evidence relevant to the Cause of Action Issues and the evidence that goes to the Public Interest defence. The latter is voluminous. It is convenient to deal with the Cause of Action Issues first. THE CAUSE OF ACTION ISSUES Legal principles 8. The relevant legal principles are matters of common law except for Serious Harm, which is an issue that arises from section 1 of the Defamation Act 2013 ("the 2013 Act"). The following key points are not in dispute. (1) Identification 9. "It is an essential element of the cause of action for defamation that the words complained of should be published 'of the [claimant]'": Knupffer v London Express Newspaper Ltd [1944] AC 116, 118. This does not mean that defamatory words that do not name the person to whom they refer are immune from action for libel. A person may be libelled without being named. There may be some other way in which readers would identify the claimant as the person to whom the words complained of refer. The question in all cases is whether reasonable people would understand the words to refer to the claimant: Gatley on Libel & Slander, 12th ed (2013) para 7.1. 10. This can be the case because of some feature or features of the words themselves. They may, for instance, contain a description sufficient to lead reasonable people who know the claimant to identify him or her as the person referred to. Or it may be that there are extrinsic facts and matters, known to some readers, which would lead a reasonable person to identify the claimant as the person referred to: see, eg, Morgan v Odhams Press Ltd [1979] 1 WLR 1239. This last situation is commonly referred to as involving a "reference innuendo". The comparison is with a "true innuendo" meaning of words: one that arises only in the mind of a person who knows "special facts", which are not matters of common knowledge. As a rule, the cause of action must be complete at the time of publication; a claimant cannot rely on facts that occur, or knowledge that is acquired by readers, after the time of publication to www.bailii.org/ew/cases/EWHC/QB/2016/1853.htm 3/58