Charities, with a view to being as transparent as possible, publish information about their inner workings. There has been an interesting case recently where a charity published information about a disciplinary process in respect of a member of the charity on their website and that member took proceedings against the charity for libel. The case is Godfrey v Institute of Conservation  EWHC 374 (QB).
Godfrey v Institute of Conservation
The Institute of Conservation (IoC) was a registered charity and a membership organisation. The IoC had cause to discipline Dr Godfrey (a professionally accredited archaeological scientist and academic), following complaints made against her. The IoC chose to publish the outcome of the disciplinary process on their website. The comments made on the website are set out below.
‘Icon member issued formal public reprimand
The Conduct Committee of Icon was convened on 20th September 2018 to hear an allegation that Icon member Dr Evelyne Godfrey had made remarks in email correspondence that could amount to a contravention of clause 4.19 of the Code of Conduct.
Having reviewed the decision of the Investigation Committee and having considered all the documentary and other evidence before it, the Conduct Committee found proved that Dr Godfrey had used language that was deplorable and unprofessional in email correspondence and thereby convened clause 4.19 of the Code of Conduct.
The Committee further determined that it was necessary to impose restrictive measures in the case and recommended to Icon that a reprimand is imposed. The Committee further stipulated that the reprimand be made public, due to the wide publication of the remarks, in order to maintain standards in the profession.
…Icon member expelled
At a meeting on 14th December 2018, the Board of Trustees of the Institute of Conservation resolved to expel Dr Evelyne Godfrey from membership of the Institute of Conservation on the ground that her continued membership is harmful to or is likely to become harmful to the interests of the Charity.
This decision, which is in accordance with Article 30.2.7 of Icon’s Articles of Association, resulted from Evelyne Godfrey’s continuing behaviour towards other members, staff, external partners and other organisations despite the published reprimand that had been issued.’
Dr Godrey brought proceedings alleging that the comments made were defamatory. At paragraphs nine and 12 of the Judgment, it confirms that Dr Godfrey alleged that the meaning that should be attributed to the words used constituted a Chase Level 1 meaning (essentially meaning that she was guilty of wrongdoing). This was not disputed by the Defendant. The hearing revolved around whether the IoC could deploy the defence of honest opinion set out in Section 3 of the Defamation Act 2013, which confirms as follows:
“(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.”
The Court held that the statements meant the following:
‘Dr. Godfrey had been found by the Icon Conduct Committee to have used deplorable and unprofessional language in email correspondence and it decided that Dr. Godfrey had accordingly fallen below the standards expected of an Icon member under Paragraph 4.19 of its Code of Conduct…
…Icon’s Board of Trustees had decided, in accordance with Icon’s rules, to expel Dr. Godfrey from membership because of her behaviour towards other members, staff, external partners and other organisations; that this was behaviour which had carried on despite the earlier reprimand issued to Dr. Godfrey, and that for these reasons Dr. Godfrey’s continued membership was currently, or would be likely to become, harmful to the interests of the organisation.’
The Court found that on this basis the comments made were opinion and accordingly could benefit from the defence set out above. In reaching this conclusion, Saini J analysed the specific wording and felt that the wording used such as ‘deplorable’ and ‘unprofessional’ were words typically used in a value judgment.
Dr Godrey attempted to argue that the IoC should not benefit from the defence of honest opinion as neither party could find a case where it had been deployed in respect of publication of the outcome of disciplinary proceedings. Saini J dismissed this argument on the basis that she found it highly unlikely that individuals subjected to a disciplinary process would regularly be likely to take action in defamation and accordingly suspected that this was the reason that there was no authority on this issue.
Whilst Saini J found that the statements were opinion, at paragraph 25 of the judgment it states in respect of the third condition of the honest opinion defence:
“The third condition (and the related issue of whether a claimant can show that the defendant did not honestly hold that opinion (s.3(5)) is fact-sensitive and I note that Dr. Godfrey has pleaded malice against Icon in her Particulars of Claim. That is a matter for further pleadings and a potential trial.”
“The third condition (and the related issue of whether a claimant can show that the defendant did not honestly hold that opinion (s.3(5)) is fact-sensitive and I
note that Dr. Godfrey has pleaded malice against Icon in her Particulars of Claim. That is a matter for further pleadings and a potential trial.”
This case demonstrates that being too transparent in terms of the internal workings of an organisation, whether charitable or otherwise, can result in Court proceedings being brought. The best course of action therefore is to not publish details of internal disciplinary processes externally, unless absolutely necessary.
However, in terms of defamation proceedings, if care is taken to ensure that the wording published is such that it clearly sets out an honest opinion (and as long as the comments are not motivated by malice), the publishing party can potentially avail themselves of the defence of honest opinion.