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- The Guardian, Monday January 7 2002
Last month's appeal court ruling in the continuing courtroom battle between a Russian businessman and the Times reaffirmed that the media have a so-called "qualified privilege" (QP) defence to libel claims when a story - even if it turns out to be untrue - is in the public interest and the product of responsible journalism.
But a hot topic for the press, in particular, is when - and how - they should use the defence. Is the best approach to develop their own "best practice" guidelines to prove to courts they are acting responsibly if they follow them, or simply to fight each case on a piecemeal basis? Will claiming the defence inevitably imperil confidential sources?
Although the ruling in Loutchansky v Times Newspapers was good news for the media, it left the law as unclear as ever; what's particularly difficult to work out is when the defence applies in practice, and what the test of QP is.
This lack of clarity goes back to the first case to establish the availability of a QP defence, when the former Irish Taoiseach Albert Reynolds sued the Sunday Times in 1999. This importantly held that the media may have a defence to a defamation action even where stories are wrong or unprovable. They just have to show that they acted responsibly and in good faith.
Ironically, the paper failed to benefit from the new defence the case made possible - a key source had an axe to grind and the Sunday Times had failed to verify the information and to put Reynolds' side of the story. And although the case was hailed as a landmark for press freedom, the QP defence has rarely succeeded subsequently. The big question is how "responsible journalism" can ever withstand rigorous forensic examination by claimants and judges in hostile courtrooms.
The highest-profile and most controversial defeat for the QP defence was suffered by the Sun when it accused Liverpool goalkeeper Bruce Grobbelaar of taking bribes to fix matches. Although the court held that this was a matter of legitimate public concern, it saw no urgency to publish; and while the paper had asked Grobbelaar for his side of the story, this had been by "ambush" at Gatwick airport. Its source was described as "wholly unreliable" and the Sun had anyway considerably embroidered the story.
Equally unsuccessful in attempting a QP defence was the Sunday Mirror, following a front-page splash (which it had to accept was wrong) asserting that the claimant's Indian sub-contractor had used child labour. The court again saw no urgency to publish; and held that the paper's source was unreliable and the journalist should have checked with the claimant's solicitors.
The defence also failed for the Times in the first round of its libel battle with Grigori Loutchansky, whom it accused of involvement in a Russian criminal organisation, money laundering and smuggling nuclear weapons. In his ruling, high court judge Mr Justice Gray said that the test of whether there was a duty to publish - the criterion established by the Reynolds case - was whether the editor would be open to legitimate criticism if the material were not printed.
That test was rejected last month by the court of appeal as "too stringent". Lord Phillips, the master of the rolls, ruled that in determining whether the public has a right to know and the press a duty to publish, the importance of "a free and vigorous press to keep the public informed" must be recognised. The case has now been remitted to the initial judge for reassessment, applying the more liberal test.
Has the defence ever succeeded? Only in three rather surprising cases, beginning with a victory for the Leeds Weekly News, which published an article critical of "rip-off" trading at a karate club, based on a complaint and a follow-up with the sport's governing body. The Reynolds defence succeeded because the article was written in moderate terms without naming the club and checked responsibly. The court felt that it was necessary to warn potential customers quickly for their protection. Similarly, in Bladet Tromso v Norway, the European court of human rights allowed a newspaper to rely on an official report without verifying the underlying facts.
Another winner was the Spanish paper El Mundo, which published an article stating that Ken Lukowiak, a former British soldier, had acknowledged shooting an Argentinian soldier who had surrendered in the Falklands war. The article went on to state that extradition proceedings against Lukowiak had begun in Argentina.
El Mundo had obtained the information from an Argentinian national newspaper, via a highly regarded Spanish news agency. It defended the ensuing libel action on the basis of QP, which was allowed. The matter was clearly one of legitimate public interest, both in Argentina and the UK. Under Spanish law, it was necessary only to show that the information had been accurately and faithfully quoted and that the source was objectively reliable. While in England it is usually necessary to verify an article's content, that was not necessary on the facts of this case. The judge was particularly influenced by cases from the European court of human rights.
The QP defence's most recent success was achieved (in Al-Fagih v HH Saudi Research and Marketing) by a Saudi newspaper which published a report stating that a member of a dissident committee, of which the claimant was also a member, had alleged that the claimant had spread malicious rumours about him.
At first, the QP defence was rejected, as no attempt had been made at verification. This was overturned last month in a liberal court of appeal judgment. The court held that the public was entitled to be informed of a fast-moving political dispute which had been fully, fairly and neutrally reported. The absence of verification did not outweigh the public interest in publication. A similar result was reached by the European court of human rights in Thoma v Luxembourg.
The court of appeal is generally taking a more liberal stance than the high court. However, the message from the English judiciary is still that the media must be careful in reporting even matters of pressing public interest and concern. Only when they can show that they have behaved "responsibly" will they benefit from the new defence. Will the European court of human rights agree that, in so constraining journalists, free speech is being adequately protected?
Jennifer McDermott is a partner at Lovells in the computers, communications and media group.
Correction: The reference to a "front-page splash" in the Sunday Mirror about an Indian sub-contractor having used child labour which the paper had to accept is wrong. In fact the splash story was entirely correct. It was a small follow up article claiming that an inquiry team had not been sent to India that was incorrect and in respect of which the defence of qualified privilege was held not to apply.
