Defamation Update

From Ad IDEM / CMLA

DEFAMATION UPDATE

By Mark Stephens

1. With all the focus on privacy – not least because of the extensive interest in the legal issues raised by the thrashing dished out to the News of the World in the Max Mosleycase – it would be easy to overlook the events in defamation over the last legal year. True, the number of contested trials was small – what’s new? – but there were some very big settlements (with damages over £500,000 and front page apologies), high-profile cases thatalmost were, and a large number of interlocutory rulings. This paper looks at some of the key events and rulings in defamation from England’s last legal year.

Defamatory meaning

2. The Court of Appeal dismissed an appeal against the judge’s ruling that words complained of were not capable of being defamatory in Jeynes v News Magazines Ltd [2008] EWCA Civ 130.

• The magazine “Love It!” published an article headed “BB’s Lisa ‘The Geezer’ My fake boobs fell out on a date with James Hewitt”. This meant, the claimant alleged, that she was a man posing as a woman. The judge struck out the meaning – both as a natural and ordinary and innuendo meaning - and dismissed the claim.

• The court applied the approach in Gillick v Brook Advisory Centre [2001] EWCA Civ 1263- both in its statement of the well-established principles to be applied in determining meaning - and in confirming that the appellate court would be reluctant to overturn a ruling by a first instance judge on meaning (being less reluctant to interfere if a judge ruledout the defamatory meaning than if s/he had ruled the meaning in same case).
• How did the case get to the Court of Appeal? Sedley LJ granted permission to appeal - on the grounds that meaning was quintessentially for the jury (on which the court agreed) “especially in matters of demotic literature and popular culture” (on which the court disagreed). In every case, the question was whether the alleged meaning was irrational or, as Sedley LJ had put it, “fanciful, absurd or factitous”.

Absolute privilege

3. In Westcott v Westcott [2008] EWCA Civ 818, the Court of Appeal had to decide the novel point of whether an initial complaint to police was protected by absolute privilege.

• The case arose out of a domestic incident: a “blazing row” that occurred when the Defendant arrived to drop off her child with his father and parental grandparents. She alleged to police that the Claimant, her former father-in-law, had assaulted her and the child. There was no visible injury. The CPS decided not to take any action. However, the allegation came to the attention of the local social services, which advised the Defendant to ensure the safety of her son by not visiting the Claimant. He sued her for defamation, contending that, as a local JP, the allegation was particularly damaging to him.
• The question of absolute privilege was determined as a preliminary issue. Richard Parkes QC sitting as a Deputy High Court Judge, who held that the complaint to police was protected by absolute privilege^[1] The Court of Appeal agreed.
• The key decision was Taylor v SFO [1999] 2 AC 177 HL, which established an absoluteimmunity for statements made out of court, but within the context of a criminal investigation. Ward LJ explained the reasons behind that decision :

“The policy being to enable people to speak freely, without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors.”

• The police could not investigate a possible crime unless the alleged criminal activity came to their notice.

“Making an oral complaint is the first step in the process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to police that her complaint will be immune from a direct or flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. .. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved”^[2].

• The Court of Appeal rejected the argument that the protection should be qualified, rather than absolute. The tort of malicious prosecution was “different”^[3].

• Two competing public interests were at stake: the protection of reputation and the public interest in the administration of justice. The court acknowledged the former but, as Ward LJ, Article 8 of the Convention was not an obstacle to the grant of absolute privilege:

“the public interest in the administration of justice does constitute a legitimate aim^[4] and the immunity does not constitute a disproportionate restriction on the right to respect for one’s private life because the necessity to speak freely overrides the sanctity of a good reputation”.

• The Court of Appeal noted that the decision in Taylor v SFO was given before the Human Rights Act was enacted. It observed, however, that the ECtHR had decided in A v UK(2003) 36 EHRR 51 that the absolute immunity for statements made in Parliament did not violate articles 6 and 8 and that in Buckley v Dalziel^[5]Eady J had held that there was no basis upon which to find that Taylor was incompatible with the Convention.
• The court did not refer to the ECtHR’s decision to reject, as inadmissible, a complaint that the decision in Taylor was in breach of Articles 6 and 8 of the Convention.^[6] However, Ward LJ’s approach, in considering the “public policy considerations of the 21^st century” and the facts of the case was broadly consistent with Strasbourg requirements. As the ECtHR held in Taylor:

“the domestic courts carried out a thorough and careful balancing of the policy reasons for and against the immunity attaching to the allegedly defamatory statements made in this case. Accordingly, any restriction on the applicant’s access to court may be regarded as proportionate and compatible with the spirit of Article 6 § 1 of the Convention. This part of the application must therefore be rejected as being manifestly ill-founded..”

The Article 8 complaint was rejected for the same reason.

The Reynolds defence

4. The Court of Appeal extended qualified privilege as a public interest defence in two decisions in 1998 Reynolds v Times Newspapers and Gaddafi v Sunday Telegraph. The case law was more authoritative following the Reynolds decision in the House of Lords a year later in 1999.

These cases establish that the publication to a general audience of information which the public has “a right to know” may, notwithstanding that it later turns out to be false, be made on an occasion of privilege. A status lost only if the publisher is actuated by legal or actual malice.

So long as it is not acting maliciously, a publisher is entitled to put into the public domain, information which has been reasonably checked and sourced as part of a discussion of matters of serious public concern. The defence is not lost if one refuses to disclose sources or if they have acted in the heat of the news moment or put out at what seems at the time to be an important and newsworthy story.

The now well-known Lord Nicholls’ laundry list of 10 “pointers” are well known:-

i. The seriousness of the allegation, the more serious the charge, the more the public is misinformed and the individual harassed.

ii. The nature of the information and the extent to which the subject-matter is of public concern.

iii. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind or are being paid for their stories.

iv. The steps taken to verify the information . This factor assumes that some steps will be taken and it is for the publisher to demonstrate that these were reasonable enough in the circumstances.

v. The urgency of the matter. News is often a perishable commodity. This dimension taken from European Court Judgments, calls for recognition that information can be characterised as “news” or “newsworthy” and should be put into circulation as soon as possible. Of course, this does not excuse a failure to make basic checks where fairness requires it.

vi. Where the comment was sought from the Claimant. He may have information others do not possess or have not disclosed. An approach to the Claimant will not always be necessary. This is a feature of fairness. The Claimant cannot complain if he has made himself unavailable for comment or was genuinely un-contactable at the time (a fact which should feature in the report).

vii. Whether the article contained the gist of the Claimant’s side of the story. This is a further fact to determining fairness.

viii. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of facts. This factor marks an important advance in the protection of investigative journalism to the extent that it will permit the publication of rumour and suspicion if the writer does not adopt them as true, but rather examines them fair-mindedly and explains why the public interest demands further enquiry.

ix. The circumstances of the publication including the timing. This is “a wipe up” heading that permits other considerations to come into play.

One factor which should be of great importance in an era of rolling news and the Internet and which in my view was omitted from this “Top10” is whether the media Defendant has promptly and prominently acknowledged falsehoods and errors in the original story and proffered a suitable apology. Any sensible law of defamation should encourage Defendants to “set the record straight”. There should in my view be no conceptual difficulty in speaking of the privilege being “lost” or “enhanced” by the Publisher’s subsequent conduct.

There is scope here for further development, because European Human Rights jurisprudence recognises that the balance between free speech and the right to reputation should be viewed realistically over a period of time rather than artificially confined to the moment of publication.

The Court of Appeal decision in Loutchansky v Times Newspapers Ltd (No.1) [2001] All ER 115 held that the media’s entitlement to a qualified privilege defence had to be judged at the time of publication, turning a Nelsonic blind-eye to all that might emerge through subsequent investigation is artificial: it ignores the reality of reporting on a rolling news story where facts for and against a Claimant may emerge over a period of coverage and it prevents the Court from making an informed Judgments on both reputation and editorial responsibility, which in the real world continues long after the original defamation is published.

The Lord Nicolls’ 10 Factors (above) had by hostile first instance interpretation turned them into 10 trip wires at any one of which the Defendant could trip and fail bring the whole defence down. The key House of Lords decision of Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 in October 2006 breathed new life into the Reynoldsdefence. The House of Lords sought to redress the balance in favour of greater freedom of the press to publish stories of genuine public interest and to reverse the interpretations which had to that point subverted the liberalising intention of theReynolds decision with the intention that more serious journalism should be encouraged rather than discouraged.

5. The first opportunity for a trial Judge to look at Reynolds again in the light ofJameel came in November 2007^[7]. The claim was brought by Prince Radu of Hohenzollern against the publisher of a magazine called “Royalty Monthly” which was suggested that the Claimant’s claim of his title was false. Eady J at first instance went through the Nicholls’ checklist but stress that they were no longer hurdles to be overcome with factors to be bore in mind. Having done so, he stood back and tried to consider the matter in the round. The Judge concluded that the article did not meet the criteria as he regarded the allegations as particularly serious and that the Claimant had not had the opportunity to put his side of the story or have it stated. The case was recently considered in the Court of Appeal in Prince Radu of Hohenzollern v Houston [2008] EWCA Civ 921 who considered whether Eady J had been right to rule that a publication was not privileged ^[8]

• May LJ emphasised that the exercise of evaluating the relevant factors was one for the judge, not the appellate court^[9]. Eady J, who was said to be “very experienced”, had not erred in principle or reached a plainly wrong conclusion. He had taken the relevant facts into account and considered the 10 guidelines set out by Lord Nicholls inReynolds^[10] without (now)treating them as a series of hurdles or impedimenta.

• The judge had been entitled to find that the article was one-sided and unbalanced. It was a relevant and important matter that the Defendant had not approached the Claimant or anyone on his side of the “dynastic divide”. The Defendant had not shown that it would have been “fruitless” to approach the Claimant. And it was a matter of “elementary fairness” that a serious charge against the Claimant should have been accompanied by an explanation he had already given (yet no reference was made to the Claimant’s earlier public denial that he had been a member of the secret police).

• The “magic wand of editorial judgment” did not answer all possible criticism of the balance of the article; the judge had made clear that the test was not whathe would have done; and the Court of Appeal accepted his balanced overall judgment.

6. In Malik v Newspost Ltd and others [2007] EWHC 3063 (QB), Eady J ruled on a somewhat far-fetched claim to the question of Reynolds privilege. A letter lodged in a local newspaper, and subsequent article containing an interview, both of which a concerted Counsellor made serious allegation of intimidatory misconduct by a Labour MP at an election. This was not a case of investigative journalism. Even so, Eady J noted that it might in principle be in the public interest for allegations to be general disseminated through the media when they were not the product of investigative (or some other form of) journalism. It is possible to conceive circumstances where it is the information itself and the public interest in receiving it, that is important rather than the means of conveying it. Some or all of the public policy considerations identified in Reynoldsmay well be engaged. However, given the failure to give the Claimant’s side of the story and given the serious nature of the allegations. The defence was unlikely to proceed. Effectively this case fell on its facts.

7. The Privy Council’s decision in Harper v Seaga [2008] 3 WLR 478, an appeal from Jamaica, included interesting observations about the Reynolds defence. The Leader of the Opposition (and former Prime Minister) in Jamaica had made a speech at a public meeting, attended by journalists, in which he alleged that the Deputy Commissioner of Police was politically biased.

• The Privy Council held that was not necessary to decide whether theReynolds defence was an aspect of traditional duty/interest privilege or a different jurisprudential creature.

• It held that there was no valid reason why the defence should not extend to publications by any person who publishes material of public interest, in any medium, so long as the conditions framed in Reynolds were met. This followed the view taken inJameel (see above) by Lord Hoffmann, supported by Lord Scott and Baroness Hale. The view expressed in Kearns v General Council of the Bar [2003] 1 WLR 1357 – that it was a defence only for the media - was not correct. This has become particularly important owing to the explosion in libel cases in the UK against NGO’s who write reports critical of individuals and businesses as well as the litigation against bloggers.

• It confirmed that the Nicholls guidelines were not like a statute or a series of hoops, each of which had to be passed and that the standard of conduct had to be applied in a practical manner and have regard to practical realities.

• The Jamaican domestic courts had been correct to reject the Reynoldsdefence on the grounds that the Defendant had “not shown the requisite care to found privilege”. Prior to publication, he had nothing more than mere rumour, including from unidentified sources, and he had not checked his information.

• Curiously, the Defendant (Seaga) (argued the case in the Privy Council on the basis of duty/interest privilege, rather than Reynolds. This was rejected in a single paragraph. The element of reciprocity of duty and interest was lacking, since the speech was made to the general public in the presence of the media. The only arguable defence in such circumstances was on the basis of Reynolds. In any event, the Reynoldstest was said to be more easily satisfied, being a “liberalisation of the traditional rules”; it was more difficult to bring a case within the traditional common law duty/interest privilege.

This case essentially fell of the facts. Mr Seaga recited a rumour and innuendo without checking. Many have misread the implications of Harper v Seaga as regards qualified privilege - as is clear from the Jameel case, only public interest information is protected by the Defence. Therefore information which falls in the realm of private and/or commercial interests in order to find a defence in such circumstances one is still required to fall back on the old qualified privilege duty-interest privilege. There are, many occasions where the public interest overlaps by no means exhaustive.

NEUTRAL REPORTAGE

8. The concept of mutual reportage is not new. Denning MR in his book “What is Next in the Law” conceived the concept as long ago as the 1980s.

Somewhat belated this development has come to pass in as a development followingJameel. This was followed by two Court of Appeal decisions, which illustrated the limits of “reportage” – the neutral reporting of both sides of an ongoing dispute^[11]. Roberts v Gable [2008] QB 502 is an illustration of a successful “reportage” plea (the magazine Searchlight reported both sides of an ongoing dispute within the BNP), while Charman v Orion Publishing Group Ltd [2008] 1 All ER 750 was a successfulReynolds plea, but definitely not a case of “reportage” (book about police corruption).

This is a welcome development which mitigates the straight jacket of the “Repetition Rule” which ordinarily requires newspapers that report on other’s accusations to be in a position to prove it so long as the report is careful to give an accusation of no extra credence, the fact that it has been made will, if newsworthy, obtaining protection although the paper would be well advised to seek out and publish the reply of the party under attack. Those papers which paid massive damages to the former Ugandan minister, Princess Elizabeth of Toro, as a result of reporting verbatim Idi Amin’s quotations about her sexual behaviour in an airport toilet in Paris would today be protected by the public interest defence: her right to reputation would now be trumped by the need for the British public to know, of a dictator, its government had helped to power, that he was mad, bad and dangerous to know.

It is better to regard “neutral reportage” as an example of the public interest defence rather than as a separate head of qualified privilege.

It is notable that Lord Bingham, in Jameel, referred to “neutral investigative journalism” exemplified by the journalist’s article as the very kind of journalism that a public interest defence should protect i.e. as reporting significant accusations without adopting or embellishing them.

Common law – “traditional” – qualified privilege

9. In Bray v Deutsche Bank [2008] EWHC 1263 (QB), Tugendhat J gave summary judgment under CPR 24.2 on the question of whether a press release issued by the bank was protected by qualified privilege.

• Under CPR 24.2, the question was whether the case had an “absence of reality”.

• The bank was subject to a regulatory framework that required it to publish information that might reasonably be expected to affect the market. The release of information in fulfilment of that duty to the public, press and news organisations was protected by privilege. It was irrelevant whether the press release was inaccurate.

• The Claimant raised an interesting – but unsuccessful - argument that, in effect, the privilege had expired, given the passage of time. It argued that the press release had served a purpose at the time it was issued, but that its continued publication on the bank’s website, in changed circumstances and, in particular, after the complaint from the Claimant, was not similarly protected.

• The judge accepted that the claimant’s submission had some force, since the reciprocity of duty/interest needed to exist at the date of publication. However, for privilege to be lost by lapse of time – for example, if someone read an old newspaper months or years after the event – would limit the effect of Reynolds and be an unwarranted limit on freedom of expression.

• He noted that the Data Protection Act 1998 would prevent the storage of personal data longer than necessary.

• And:-

“It is hard to see how the keeper of a library or database can guard against the risk of liability for defamation where there is a publication of a statement written at a time when it was protected by common law privilege (of the reciprocal duty and interest type), but where the same reciprocal duty and interest may not subsist at some subsequent date upon which the document is read by a new reader. In my judgment, in the context of publication to the world of the Press Release in this case, mere passage of time is not capable in law of resulting in the loss of the privilege, if it existed on first circulation of the document in March 2006. It may be said that the conclusion that I have reached is not consistent with the principle of English libel law that each publication is a separate tort. ….”^[12].

• In addition, the judge held that the claimant had failed to establish a sufficient case in malice against the bank’s management board. That case fell short of the “high threshold” required for a case of dishonesty to go to trial; there was nothing in the pleading which was more consistent with malice than with “carelessness or inadvertence”. As was well-established, what was set out had to be more consistent with the existence than the non-existence of malice.

10. Summary judgment on the question of qualified privilege was granted in Seray-Wurie v Charity Commission of England and Wales [2008] EWHC 870 (QB), The Charity Commission, which had a statutory duty to carry out inquiries, published a report of its inquiry into the East End Citizens’ Advice Bureau of which the Claimant was a trustee. Its policy was to report the outcome of formal inquiries on its website. The report included statements that the Claimant had abused his position as a trustee and was guilty of fraud.

• The occasion was protected by common law privilege: there was a duty to communicate to the general public; the Charity Commission did not have to fulfil the Reynolds criteria, such as verification or opportunities to comment (although, in fact, it had carried out a careful inquiry and obtained the Claimant’s comments). The Reynolds defence did not cut down Article 10 rights.

• There was no triable issue on malice. In order to survive, allegations of malice must “go beyond that which is equivocal or merely neutral.” It was necessary to show dishonesty or a dominant motive to injure the claimant. Mere assertion by the claimant that there was abuse would not be enough: “a claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box of that he will make an admission in cross-examination”.

• The Charity Commission’s inquiry had taken evidence (including from the claimant) and reviewed relevant documents; it had taken some account of what the claimant had said about the draft report, but had not been under any obligation to set out what he said in full, still less to adopt or agree [39]. In effect, the claimant’s case on malice was based on the fact that its conclusions did not accord with his own account and on a bare assertion by him of a conspiracy to do him down.

11. Both of the above cases of privilege encompassed publication to the general public. Generally, to establish reciprocity of interest, it is necessary to show that the publishees all share a common interest in the subject-matter of the communication, as is illustrated byTrumm v Norman [2008] EWHC 118 (QB). Tugendhat ruled on a claim of privilege in respect of a circular published by the Acting General Secretary of the trade union ASLEF against a former member, train driver Mr Trumm. The circular gave an account of the outcome of a protracted dispute between Mr Trumm and the union. It was published on the ASLEF website and in “Loco Journal”, a publication mainly sent to ASLEF members and retired members. Of the total circulation of almost 20,000 copies, some 202 were distributed to people who werenot members or former members of the union, including legal and financial advisers, libraries, MPs and journalists.

• There was no evidence as to the number/nature of those who had read the article on the internet. The judge had no hesitation in inferring that members of the union accessed the website (publication to union members was privileged). Since the website was of “specialist interest” – unlike those of newspapers or other media organisations – he refused to infer that there were website readers who were not union members (or former members)^[13]

• There was no defence of qualified privilege in respect of the readers of Loco Journal who were not members of Aslef – they had no greater interest in the affairs of the union that the ordinary member of the public.

12. An attempt to establish a defence of qualified privilege for an article in The Sunfailed in Blackwell v News Group Newspapers and others [2007] EWHC 3098. The Claimant, one of the former managers of Leeds United FC, sued over allegations by Ken Bates. In what might be described as a bold application, Mr Bates (the sole remaining Defendant after two settled with the Claimant) asked for summary judgment on the grounds that the publication was protected by qualified privilege – as a reply to an attack – and that there was no evidence of malice.

• The judge found that Mr Bates had been holding forth on a number of “targets” in his sights (including the Claimant), and “having a go” at those he thought had contributed to the problems at Leeds United. Public policy did not require that qualified privilege should protect the publication.

• However, he ruled out the malice plea. The use of “inflammatory and exaggerated language” was not, of itself, evidence of malice, since it was “equally consistent with strength of feeling and sincerity of belief”. Similarly, the absence of an apology was not evidence of malice, where it was entirely consistent with honesty of belief.

13. Turning to libel cases brought in respect of more confined publications, in Akinleye v East Sussex Hospitals Trust [2008] EWHC 68 (QB), Richard Parkes QC sitting as a deputy gave summary judgment under CPR 24.2 in a libel action brought by a technician who worked in the cardiology department of a hospital over an email, sent by the medical director of one NHS trust to another, in answer to a request for any information relevant to concerns about the claimant during his employment.

• The court held that the occasion was protected by qualified privilege. The contents of the email were not “excessive” or out of the scope of the privilege.

• There was no evidence of malice. Witness statements had been exchanged, before the application was made. While assuming all the facts in the Claimant’s favour (as required on a CPR 24.2 application), the judge noted that it was not necessary to resolve allapparent conflicts of facts in the Claimant’s favour, for example, where the Claimant’s evidence was “fatally incoherent or self-contradictory”^[14] or where the evidence was “pure unsupported assertions”. Taken at its highest, the evidence did not raise a probability of malice, but remained in the realm of “mere (and distinctly improbable) possibility”.

14. By contrast, in an unusual case, W v H and A County Council [2008] EWHC 399 (QB), Tugendhat J refused to grant summary judgment. A registered social worker, who worked as an assessor on various courses, sued for slander over words spoken by the first defendant (another practice assessor) to the university for which the Claimant worked. Following that publication, the university withdrew its request that the Claimant act as an assessor. The Defendant asked for summary judgment on the basis that the publication was clearly protected by duty/interest qualified privilege: the present employer should be apprised of the circumstances in which the Claimant left his earlier employment. The Claimant contended that the statement had been volunteered by the First Defendant, who did not know the claimant and had no direct knowledge of what had happened; the information was inaccurate (the Claimant had not been guilty of sexual harassment; he had been assured by his employer that the information about the original allegation would not be retained on his file beyond 18 months, unless there was a further complaint); and the publication was devastating to him.

• The judge accepted that, where there was an “established relationship” between the publisher and publishee, there was no duty of inquiry^[15] However, this was not a case where the question of privilege could be determined by looking at the relationship between the parties and the subject-matter of the communication.

• Just as it had been established in Spring v Guardian Assurance^[16] that there could be liability in negligence in a “reference” case, so the employer could be liable for any assurances given to the employee or any obligations under the Data Protection Act 1998 (“DPA”). And, where there was a voluntary reference, there might be a duty of adequate inquiry.

• This case involved personal information, which engaged rights and duties between an employer and the (ex) employee.

“..where the information the subject of the communication might engage the rights of an individual (the claimant) under Art 8, or his rights under the 1998 [DPA], the claimant should be afforded the opportunity to argue that there should be reconsideration of the test by which to answer the question whether the defendant’s right to freedom of expression (afforded in such a case by the defence of qualified privilege) prevails over the claimant’s rights. It is for consideration whether the determination of such conflict between the rights of the parties may require the approach set out for resolving that conflict in a different context, Re S..[2005] 1 AC 593.”

• The ex-employer might find it difficult to persuade a court that it had a duty or interest to communicate information in respect of which he had given the employee an assurance that it would not remain on his file. Or, similarly, if the employer had kept the information longer than necessary; or kept or disclosed it unfairly, contrary to the DPA^[17]

• The lapse of time between the date of the subject-matter of the communication (1994) and the date of the publication (2006) was such that the issue of privilege could not be determined summarily.

The curious case of Curistan: qualified privilege and meaning

15. The Court of Appeal decision in Curistan v Times Newspapers Limited [2008] 1 WLR 126^[18] is likely to be the subject of argument (if not confusion) in future cases where it is argued that part of a publication is protected by qualified privilege. Here, an article in The Times reported what had been said about the Claimant in Parliament, followed by the results of the newspaper’s own inquiries. The Claimant sued on the whole article, framing a defamatory meaning of “guilt”. That high level of meaning was derived from the parts of the article reporting what was said in Parliament. The newspaper argued that in determining the meaning, the court should disregard the privileged parts. The Court of Appeal agreed.

• The decision required reconciliation of three principles: the single meaning rule, the repetition rule and qualified privilege.

• The clearest explanation for the decision is found in the judgment of Laws L. The repetition rule had to be set aside for the parts of the article protected by privilege; the meaning of the rest of the article had to be considered separately from the privileged part (as an exception to the single meaning rule); so that the privileged part of the report was the “context” for the rest, “no more”.

• Arden LJ, after a review of the authorities, expressed her conclusion. Lord Phillips CJ’s agreement.

• The result of the analysis, taking out of consideration what had been said in Parliament (which had not been adopted), was that the article held a lower defamatory meaning (“reasonable grounds”).

Putting this decision into practice is likely to give rise to considerable difficulty. What will it mean to take into account privileged parts of the article only as “context”? And how will this operate in cases where the privileged parts are not reports of Parliament –but privileged in other ways, for example, protected by Reynolds?

Justification

16. Three decisions illustrated the court’s approach to the scope of what can be relied upon in justification:

(1) Rath v Guardian Newspapers [2008] EWHC 398 (QB).

Tugendhat J rejected an attempt to strike out material parts of the pleas of justification and fair comment. As was reported recently in The Guardian, the Claimant later withdrew his claim and has to pay the newspaper’s costs (he sued over an article in the “bad medicine” column, which criticised him for claiming that his vitamin pills were more effective treatment for HIV/AIDS than antiretroviral medication).

(2) Sharma v Singh and Associated Newspapers Limited [2007] EWHC 2988.

Another decision of Tugendhat J, this time over a case concerned with allegations of sexual harassment. The defendant was not allowed to introduce a report of an investigation, with a view to showing that the Claimant had hampered the investigation. The judge found that this was a separate and distinct matter and, in any event, the bringing in of the report and seeking of an inference “would take the trial far outside the limits of what is necessary and proportionate to determine the issues between the parties, and would not be in the interests of justice”

(3) Warren v Random House Group (below)

Although primarily important as an “offer to make amends”, there is a useful illustration of the court’s approach to a justification plea.

Jurisdiction, limitation and other procedural joys'

Jurisdiction

17. An interesting decision by Master Leslie in Mardas v New York Times Company (10 June 2008) is currently under appeal. The Claimant, a Greek national, sued over articles in the New York Times (“NYT”) and International Herald Tribune (“IHT”) about events back in the 1960s concerning The Beatles and the Maharishi which, he said, suggested that he was a charlatan and fantasist. The court ruled that the Claimant would not succeed in establishing that the IHT had been published within the jurisdiction in hard copy form. The remaining publication here was very limited: 177 copies of the NYT; 4 hits on the NYT website and 27 on the IHT website. The events described went back 40 years and any trial would involve “monumental” costs, far in excess of the amount at stake. The Claimant could sue in New York (NYT) and Paris (IHT). The game was not worth the candle, the wick, or even the match. The claims were an abuse of process. This case will be closely followed by those interested in “libel tourism”.

18. The Defendants made an unsuccessful challenge to the jurisdiction of the court inBerezovsky v Russian Television and Radio Broadcasting Company [2008] EWHC 1918 (QB). The basis of the application was that the source of the allegations in the broadcast was a Russian state-protected witness, who could not be identified. Firstly, the Defendant did not make that case out on the facts (as the judge pointed out, his name seemed to be known to everyone). Moreover, the judge was not satisfied that the inability to identify the witness would impede any defence: there was no suggestion they intended to justify and, so far asReynolds was concerned, it was possible to rely upon that defence without naming the course, if section 10 of the Contempt of Court Act 1981 applied. In short, there was no reason to decline jurisdiction: there was a substantial publication within the jurisdiction of very serious allegations against the claimant, who had lived here for 7 years. The judge left open the possibility of a further application by the Defendants.

19. Recent decisions on limitation include:

(1) Wakefield v Ford [2007] EWHC 3423 (QB).

Gray J refused an appeal against a decision by the master to disapply the one-year limitation period under section 32(a) of the Defamation Act 1996. He considered the principles relevant to the admission of fresh evidence. On any view, the case was very limited – damages of £500 were claimed – and there was no risk of repetition. Having said that he would “hate to think” what the level of costs were, he urged the parties earnestly to consider reconciliation of their differences.

(2) Gentoo v Hanratty [2008] EWHC 627 (QB).

The judge allowed the extension of the limitation period, so as to permit the Claimant to complain of allegations on a website. The case was part of the continuing saga (the “Sunderland Housing” case) in which the claimant sought to stop publication of serious defamatory allegations which had been made, in some cases anonymously, on websites.

20. The problem of internet defamations was considered by the Court of Appeal in Smith v ADVFN [2008] EWCA Civ 518. The Claimant issued a large number of claims against bulletin board users and then sought Norwich Pharmacal disclosure orders in respect of 150 further postings. Mackay J refused to order that disclosure and the Court of Appeal held that he was entitled to do so. It was unreasonable to expect the judge, in the short time available, to assess without proper guidance each and every alleged instance of defamation, given the volume and incoherence of the material which he had been expected to consider. It is important to bear in mind, however, that a properly focused application can be an important aid to the claimant in seeking to put a stop to persistent false and defamatory allegations.

21. In a later decision, Eady J stayed a large number of actions brought by the same claimant: [2008] EWHC 1797 (QB). A number of claims were over “vulgar abuse”, forming part of much longer discussion threads. The judge suggested that contributions to bulletin boards were more like slanders, since it was obvious that “people are just saying the first thing that comes into their heads and reacting in the heat of the moment”. However, it must be remembered that whether or not the publisher meant their remarks to be taken seriously, they are recorded in “permanent form” and are accessible long after the original publication and to many others. This reflected the approach in an earlier out of court mediated settlement in Gina Ford v Mumsnet.

22. A good illustration of a libel claim that constitutes an abuse of process is Freer v Aurang Zeb and others [2008] EWHC 212 (QB). Victoria Sharp sitting as a deputy QC struck out the entire claim as an abuse of process. She looked at the whole picture – including the fact that the Claimant had started a series of actions (including the defamation action) against his ex-girlfriend, just after they broke up. The claim totally lacked merit.

Is the libel game worth the candle: damages

23. There have been well-publicised large awards of damages for libel. In March 2008, Kate and Gerry McCann recovered damages of £550,000, plus front page apologies, from the publishers of the Daily and Sunday Express and Daily Star. The newpapers had alleged, in a series of articles, that the “couple caused the death of their missing daughter, Madeleine, and then covered it up". The damages were paid into the Madeleind Fund. The settlement was announced on the same day, and rather overshadowed, the settlement of the claim by Sheldon Adelson, Las Vegas casino owner and billionaire, against Associated Newspapers Limited^[19]. More recently Robert Murat was reported to have recovered £600,000 from a number of media defendants who had made false claims about his alleged involvement in the disappearance of the McCann’s daughter and again received front page apologies. In each case the serious of articles led to the breach of our £215,000 cap on damages.

Court of Appeal

24. There were two decisions on the amount of damages in the Court of Appeal. The first wasPurnell v Business F1 Magazine Limited [2008] 1 WLR 1. The Claimant was awarded £75,000^[20] by a jury (the trial was on quantum only, after summary judgment had been given), over an article in BusinessF1 Magazine that alleged that he had acted dishonestly and corruptly bribed a journalist. The three principal heads of general compensatory damages were, of course, injury to feelings, injury to reputation and vindication.

• The Defendant argued, however, that since there had been a judge’s reasoned judgement on liability, there was no place for any element of vindication. The argument was weakened by the fact that, after the judgment, the magazine had published another article, suggesting that the Claimant had won on a technicality. This was, argued the Claimant, setting out to “rubbish” the judgment.

• The court held that a prior judgment, rejecting a defence of justification and holding the libel unsubstantiated, was capable of providing some vindication of reputation. So itmay be taken into account and it would be for the tribunal assessing damages to decide what impact it had on the question of vindication. There might be cases where a prior judgment would provide no significant vindication (for example, if the defence were to be struck out for a technical reason, with no regard to the merits).

25. In Gur v Avrupa [2008] EWCA Civ 594, the Court of Appeal also refused to interfere with the award, this time by judge alone (Victoria Sharp QC). The claimant was awarded £85,000 for libels in three articles in the Turkish language newspaper, Avrupa (published in the USA). The Claimant had resided here for over thirty years; he was prominent in the British Turkish Community, being well known in business and for his charitable works. The allegations against him included false accusations of attempting to defraud the Turkish authorities on a building project.

• Although the judge did not have regard specifically to damages awards in personal injury cases, she did have regard to the overall “ceiling” figure – now set at £215,000. Since that figure had been set by reference to personal injury awards, this was appropriate and sufficient^[21].

• The court rejected the argument that the means of the defendant were relevant to the assessment of damages for the tort of defamation. Despite what had been said by the ECtHR inSteel & Morris v UK, to hold the defendant’s means relevant on compensatory damages^[22] would require a change to a “fundamental and long-established principle of our law” .

Overall, the circulation was modest (compared to national newspapers), but the libels were serious and particularly damaging to the claimant, as a leading member of the community in which he lived and worked. The case was upheld on appeal and a now bankrupt Mr Oz (the editor) has taken the case to the European Court of Human Rights.

First instance awards

26. First instance awards have included the following:

(1) Applause Store Production Limited v Raphael [2008] EWHC 1781 (QB).

The defendant had created a fake Facebook profile for the claimant. The claim was brought in defamation, as well as misuse of private information. The only defence at trial was whether the defendant was responsible for publication. The judge awarded the individual claimant £15,000 (allegations that he was in substantial debt, which he repeatedly avoided paying by lying and making implausible excuses, and was not to be trusted) and the corporate claimant £5,000 (that, by reason of the individual’s conduct, it was a credit risk and not to be trusted).

(2) Trumm v Norman (above)

The judge awarded damages of £7,500. He took into account Mr Trumm’s conduct, in setting up a website on which he published provocative attacks on the union and its officers. He also took into account the fact that Mr Trumm was “robust”, so that he would feel the injury less than others might have done. Without these factors, the judge would have awarded £15,000.

(3) 'Keating v Ministry of Defence

An award of £45,000 (Richard Parkes QC) to the national chairman of the staff association of the MoD police over false website allegations.

(4) 'George Galloway v Jcom Radio

An award of £15,000 to the MP for allegations of anti-Semitism (Eady J). The publication was small scale and there had been a prompt apology.

In addition, in separate trials, Associated Newspapers were ordered to pay £50,000 to Hollingsworth (May 2007 – the award of £75,000 was more than had been claimed) and £5,000 to Martin Jones. A hung jury led to an order for a re-trial in Ivereigh v Associated Newspaper (the Malik case, another hung jury, was settled). The cases going to trial are a tip of the iceberg, with the majority of cases settling.

Mitigating damages

27. In Warren v Random House (above), the court considered what matters could be relied upon to mitigate damages under the Burstein principles^[23]. At the court observed that the formula “directly relevant background context” encapsulated what was admissible, but did not give sufficient guidance on how a judge should apply it.

“There is no substitute for examination in each case of whether the material qualifies as background context directly relevant to the assessment of the damage sustained by the claimant as a result of the publication, in particular, the damage to his reputation in the sector of his life to which it relates and the injury to his feelings.”

The judgment of Eady J in Tesco v Guardian (also above) illustrates the operation of this principle in practice (introduction of facts relating to corporation tax schemes operated by Tesco – albeit not the subject of the original article).

I am grateful to Heather Rogers of Matrix Chambers for assisting me in pulling together information for inclusion in this paper. With that note of gratitude, I take full responsibility for all errors and the opinions that are expressed are mine and not hers.

Mark Stephens
Finers Stephens Innocent LLP
179 Great Portland Street
London W1W 5LS
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