1. Were the allegations true?
The court found in the Guardian’s favour on both its defences: that the articles it published on sexual misconduct allegations against Noel Clarke were true or substantially true; and that publication of the articles was in the public interest.
It said that Clarke was, overall, “not a credible or reliable witness”.
Regarding the first article published by the Guardian, Steyn said: “There are strong grounds to believe that the claimant is a serial abuser of women, that he has, over 15 years, used his power to prey on and harass and sometimes bully female colleagues, that he has engaged in unwanted sexual contact, kissing, touching or groping, sexually inappropriate behaviour and comments, and professional misconduct, taking and sharing explicit pictures and videos without consent, including secretly filming a young actor’s naked audition.”
She said: “The meanings of all eight articles were found to be substantially true. The Guardian established that the truth defence applied and so the libel claim fell to be dismissed.
2. Was there a public interest in publishing the allegations?
The court focused on the first article on the basis that if the public interest defence succeeded in respect of that, it should succeed on the subsequent articles.
The Guardian mounted a public interest defence principally on the grounds that a successful man in the film and television industry had used his power and status to subject women to sexual harassment and abuse, unwanted sexual contact, mistreatment and bullying over many years. It also said the industry had failed to protect female workers.
The court found that Katharine Viner, the Guardian’s editor-in-chief, “honestly believed publication was in the public interest. If it were necessary to look beyond her belief, the other editors and the reporters all believed publication was in the public interest, too”.
Viner told the court that “sexual harassment is an important subject for the Guardian to report on”. The first article “told a story of the specific ways in which imbalances of power and influence were serially abused”, she said, and there was “a very clear public interest in exposing allegations of misconduct” in the context of Clarke having recently been given a prestigious award by Bafta.
The court concluded that Viner had “given compelling and unchallenged evidence that she believed, and continues to believe, that it was in the public interest to publish”.
Steyn said the Guardian “succeeded in establishing that the first article was published on a matter of public interest. Ms Viner made the decision to publish and she honestly believed (along with all of the Guardian’s editorial witnesses, as well as the reporters) that publication was in the public interest … That belief was undoubtedly reasonable.”
3. The allegations
Steyn said the question was whether there were strong grounds to believe that, over 15 years, Clarke had used his power to prey on and harass female colleagues, had sometimes bullied female colleagues, had engaged in unwanted sexual contact, kissing, touching or groping, engaged in sexually inappropriate behaviour and comments, had engaged in professional misconduct, and had taken and shared explicit pictures and videos without consent.
She said that “instances of each of those elements have been established” and this is “more than sufficient to find that the meaning of the first article is substantially true”.
The judge said: “The strong impression that I gained is that Mr Clarke felt that he could sexually proposition any woman he wanted, as reflected in his evidence that he has ‘been turned down a million times’, even allowing for the obvious hyperbole – regardless of the circumstances.
“He had no understanding of how pressuring such conduct could be, or how uncomfortable it could make young women, in subordinate roles to him, feel while performing their jobs.”
Steyn also found that Clarke “covertly filmed the naked auditions” of two women and showed the footage to a colleague. “It is probable that Mr Clarke also recorded, or sought to record, footage of at least one of the other actors who attended the final audition.
“Mr Clarke did so knowing that the actors had been firmly assured that their naked auditions would not be recorded.”
She continued that the “inevitable inference” was that Clarke “acted in this way for his own sexual gratification”.
4. The witnesses
The court heard oral evidence from Clarke plus eight witnesses called on his behalf. Written statements were submitted from six further witnesses.
For the Guardian, the court heard oral evidence relating to the truth defence from 26 witnesses and considered witness statements from three others, plus six Guardian journalists who gave evidence relating to the public interest defence.
A striking feature of Clarke’s case was that he alleged that “almost all of the Guardian’s 29 witnesses to the truth defence are lying, at least in part, in the evidence they have given to the court”.
His claim that there was a conspiracy against him “lacked any proper foundation”.
The court found that although there were connections among the Guardian’s witnesses to the defence of truth, many came forward independently after the first article was published or had no involvement until they were asked to give evidence.
“There has been no conspiracy to lie. In the absence of a conspiracy, Mr Clarke’s case that more than 20 witnesses – none of whom are parties or have a stake in this case, as he does – have come to court to lie is inherently implausible.”
5. Noel Clarke
The court considered that “overall, Mr Clarke was not a credible or reliable witness”.
Steyn said his case had been “almost entirely one of robust denial and counter-allegations”. The judgment said Clarke had a “very clear motive to lie. He says the Guardian’s publications have been career-ending and he values success in the claim in excess of £70m …
“It is obvious that the first article had a hugely damaging impact on his reputation, his career and his finances. He has sued the Guardian for libel, involving both parties in a long, complex and expensive trial, to try to repair that damage.”
However, Steyn added: “One aspect of Mr Clarke’s evidence that I accept is his belief that he is not what the Guardian ‘branded’ him. Although I find that he has been untruthful about most of the allegations, in his efforts to salvage his career, his initial response that ‘some of my actions have affected people in ways I did not intend or realise’ was true.
“Even when his actions have been calculated and deliberate, Mr Clarke has tended to be oblivious to their impact, regarding his own behaviour as merely being ‘naughty’, ‘cheeky’, ‘teasing’ or within his rights as a director or producer. In addition, he does not see himself as reflected in the articles because there is a kinder, more generous side to him. But that does not detract from the conclusions I have reached.”
6. The Guardian’s journalists
The court heard oral evidence in support of the public interest defence from six witnesses called by the Guardian: Katharine Viner, the editor-in-chief; Owen Gibson, the deputy editor; Paul Lewis, the head of investigations; Nicole Jackson, the head of audio, and Lucy Osborne and Sirin Kale, the main reporters.
Steyn said she agreed with Viner’s evidence that “the factual accounts of the Guardian’s sources are presented in ‘a measured and accurate way’, without being ‘exaggerated or sensationalised’”.
Gibson “gave unchallenged and obviously honest and reliable evidence regarding the investigation, the decision-making process, and his belief that publication of the first article was in the public interest”.
Regarding Lewis, Osborne and Kale, Steyn said each gave “honest and reliable evidence”.
Osborne and Kale were each accused in cross-examination of having “an agenda”, seemingly to “get Noel Clarke”. Steyn said: “That allegation has no foundation, and is demonstrably disproved by the materials before me which show the extensive efforts they made to investigate, test and corroborate the information they received, and not to publish allegations which they could not substantiate.”
Osborne and Kale exercised “critical reasoning”, and tested and investigated the information they received, the judgment says.
The claimant made the “wild and wholly unfounded allegation” that Lewis was a “rogue journalist with his own agenda”. He was accused of lying and being evasive.
Steyn said of Lewis: “I found him to be an honest and reliable witness. Across the two days that he gave evidence, his conscientiousness, professionalism, integrity and desire to assist the court shone through. I have no hesitation in finding that he, too, honestly believed that publication of the first article was in the public interest.”
7. The court’s conclusion
“The Guardian has succeeded in establishing both truth and public interest defences to the libel claim. In addition, in respect of the second to eighth articles, the serious harm requirement was not met. The data protection claim was withdrawn. Accordingly, Mr Clarke’s libel and data protection claims against the Guardian are dismissed.”