Hay v Cresswell [2023] EWHC 882 (KB)
Case background
The Claimant in this case was Mr Hay, a tattoo artist. The Defendant, Ms Cresswell had posted a number of publications about Mr Hay, including:
- A blog on the Telegraph website headed “Glasgow tattoo artist pinned me to wall and assaulted me: he should not be tattooing women”;
- A Facebook message to Mr Hay’s girlfriend and business partner, Emma Sweeney, attaching a copy of the Telegraph article;
- An email to Ms Sweeney;
- Two Facebook posts; and
- A post and story on Instagram.
All of the publications mentioned Mr Hay and the name of his tattoo studio. Mr Hay pursued a defamation claim against Ms Cresswell stating that the publications caused him great embarrassment, distress and damage to his reputation. He sought general damages and injunctive relief.
The Judge clarified that to be successful in his claim, Mr Hay would need to establish that Ms Cresswell was responsible for the publications, that the publications referred to him and that they were defamatory. The Judge considered the ordinary and natural meaning of the publications and referred to the case of Thornton v Telegraph Media Group Ltd in which it was confirmed that a:
“statement will be defamatory at common law if, in its natural and ordinary meaning, it substantially affects in an adverse manner the attitude of other people towards the claimant or has a tendency to do so”. The Judge concluded that the natural and ordinary meaning of the publications was that the “claimant had violently sexually assaulted the defendant”.
Ms Cresswell accepted that the natural and ordinary meaning would be defamatory at common law and that the statutory “serious harm” test would be met. It was Ms Cresswell’s position that she should be permitted to rely upon the defence of truth or of public interest. The question before the Court was therefore not whether the publications were defamatory at common law but whether Ms Cresswell could rely upon a defence.
Ms Cresswell’s primary position was that her intention in publishing the posts was to alert other women who could have become victims of sexual assault at the hands of Mr Hay. Ms Cresswell relied upon the statutory defence of truth which can be found at Section 2(1) of the Defamation Act 2013 (DA 2013). To rely upon the defence of truth, a defendant needs to show that the imputation conveyed by the statement complained of is “substantially true”. The Judge considered the evidence before her including police records and witness testimony and found as follows:
“Weighing all these matters together and mindful of the issue for me to address as identified at para 21 above, I conclude that the substantial truth of the imputation that I have identified has been proved. Whilst I consider that there is a degree of exaggeration in the defendant’s account in particular in relation to her dealings with the police in the aftermath of the incident, I am satisfied that she has established on a balance of probabilities that she was subjected to a violent sexual assault by the claimant in the early hours of 28 May 2010 as the account at para 10A(c) of the re-amended defence is honest and accurate in all its essential respects and specifically in the narrative of the assault.
In the circumstances the defendant has established a defence to the proceedings and it is strictly unnecessary to consider the other defences upon which she has relied. However, the parties proposed that if this situation arose I should consider the section 4 defence and I will take this course…”
Ms Cresswell also sought to rely upon the defence of public interest which is set out at Section 4 of the DA 2013.
Section 4 of the DA 2013 states:
“(1) It is a defence to an action for defamation for a defendant to show that –
- the statement complained of was, or formed part of, a statement on a matter of public interest; and
- the defendant reasonably believed that publishing the statement complained of was in the public interest.”
Ms Cresswell pleaded that the publications were on matters of public interest, namely:
- The prevalence of sexual abuse in the tattoo industry, which at the time was a matter of significant public concern and known as “Tattoo Me Too”;
- The need to protect women from sexual abuse; and
- The failure to prosecute sexual abuse cases.
The Judge accepted that all three of the above topics were a matter of public interest. The next question to be determined was whether the statements made by Ms Cresswell were on such matters. The Judge analysed the precise wording of each publication and concluded that each publication was in line with the 3 matters of public interest identified by Ms Cresswell. Lastly, the Judge considered whether it was reasonable for Ms Cresswell to believe that she was publishing the statements in the public interest. The Judge concluded:
“I am satisfied that she did believe that she was publishing the statements complained of in the public interest. I find that this was her belief at the time of each of the publications. It is also reflected in the words that she used at the time in the publications, which I have already set out. After the email publication, the defendant’s view that she should speak out was reinforced by the fact that she received no response from Ms Sweeney who blocked her on multiple social media accounts. In arriving at this conclusion, I also note that the defendant was not cross-examined on this issue and nor was it suggested to her that she had any other motivation for publishing the statements or that she had not in fact addressed her mind to these matters at the time.”
Comment
This is the first reported case in which a defendant sexual abuse survivor naming a perpetrator has successfully relied on the public interest defence.
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