Reynolds Privilege - Is the Landscape Altered?

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It was Albert Reynolds, the former Taoiseach, who was responsible for a sea change in the law of libel in the sense that it became possible to defend libel actions in the United Kingdom on public interest grounds rather than having to prove the truth of the underlying allegations. It was the culmination of a series of hard fought cases on the part of Times Newspapers Limited and their in-house lawyer, Alastair Brett. In the Reynolds case [2001] 2 AC 127, the former Prime Minister whose house in Dublin had become known as Litigation Lodge as it was jokingly said to be the product of so many successful libel actions, was left with no damages and very substantial legal costs.

The ten non-exhaustive guidelines laid down by Lord Nicholls seemed to shift radically the balance in favour of media defendants. Instead of a Claimant taking advantage of the fact that, whatever the actual truth of the matter, the Defendant would not be able to prove the facts necessary to substantiate a plea of justification, the claimant now had the uncertainty of having to evaluate the steps taken by the journalist to stand up the story - facts which, in the nature of things the Claimant would be unlikely to know.

Lord Nicholls had indicated that the factors to be taken into account in deciding whether the Reynolds privilege applied were the seriousness of the allegations, the nature of the information communicated and the extent to which the subject matter was a matter of public concern, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment was sought from the claimant, whether the article contained the gist of the claimant’s side of the story, the tone of the article and the circumstances of the publication including its timing.

In the next seven years the Reynolds defence proved to be something of a mirage. It spawned very costly satellite litigation while the quality of the journalism was trawled over. The Loutchansky case (an unsavoury Reynolds defence Claimant who had an unsavoury past but more relevantly had lots of recently acquired Russian money against the Times [2002[ QB 321 illustrated the cost and complexity of running a Reynolds defence. In only two cases had the Reynolds defence been successful. The libel judges of first instance tended to use the Nicholls guidelines as hurdles which had to be cleared and, applying judicial hindsight, they almost invariably found fault with the journalism. In Loutchansky the jury was called in to decide a hotchpotch of disputes about the standard of the journalism. The Defence in such cases were almost invariably at a disadvantage in that they were often relying on anonymous sources. Furthermore, with the jury being directed as to the presumption of falsity the tendency was to disbelieve journalists’ claims about how they had investigated their stories.

In October 2006 the House of Lords in Jameel -v- Wall Street Journal Europe SPRL (No. 3) [2006] UKHL 44 set aside the verdicts obtained by a Saudi Arabian businessman and his company after the Reynolds defence had been firmly rejected by Mr Justice Eady whose decision was upheld on narrower grounds in the Court of Appeal. A detailed analysis of the importance of this case is set out in an article I wrote earlier this year which was published in the attached Entertainment Law Review [2007] Ent.L.R. 62.

In essence the House of Lords in Jameel said that the Reynolds decision was meant to reflect the elasticity of Article 10 of the European Convention of Human Rights. Rather than being applied in a practical and flexible manner, it had become overlaid by judicial hindsight. The approach of the trial judge was subjected to coruscating criticism by Lord Hoffmann. If ever there was a case where the Reynolds defence should be applied, this, surely, members of the House of Lords felt, was it. It was an unsensational story with rigorous fact-checking by a specialist journalist on a matter of the greatest public importance. Yet surprisingly the trial judge had rejected the claim of responsible journalism on the grounds that real names should not be used, rather some term like “prominent Saudi businessmen”, that the material should not have been published, as it was confidential government information and that publication should have been delayed so that comment could be obtained from Mr Jameel. However, there was in fact little that Mr Jameel could have said about the secret monitoring of his account other than to state in general terms his innocence of any wrongdoing.

There was a distinct move away from the old-fashioned approach of Lord Hobhouse in the Reynolds case reflecting the view that “no public interest is served by publishing or communicating misinformation”. The future approach which was set out by Lord Hoffman. Firstly is the subject matter of the article of public interest - something to be considered on the basis of the whole article and not simply by isolating the defamatory statements? Lady Hale in this regard pointed out that the defence was not a free-for-all and did not - as she rather graphically put it - cover the vapid tittle-tattle of footballer’s wives and their girlfriends. Secondly, was the inclusion of the defamatory statement justifiable? If so, were the steps taken to gather and publish the information responsible and fair? In this process weight must be given to the professional judgment of the journalist unless there was some evidence that he or she had acted in a casual, cavalier, slipshod or careless manner. Lord Hope pointed out that responsible journalism was a standard which everyone in the media and elsewhere could recognise. It was expected that a body of law would develop to help define the boundaries of legitimate journalism. Lady Hale observed that we need more serious journalism in the United Kingdom and that the law of defamation should encourage rather than discourage it.

The Jameel decision was first considered by the Court of Appeal in Roberts -v- Gable [2007] EWCA 721. This concerned publication in an anti-fascist newspaper called Searchlight of feuds within the extreme right-wing British National Party. Searchlight gleefully reported allegations of theft and violence being made amongst various members of the BNP. The tone of the article was distinctly unsympathetic, as is evidenced by their headline “News from the Sewers”. This was upheld as reportage despite the writer’s antipathy to the BNP, applying the decision in Al-Fagih -v- HH Saudi Research and Marketing (UK) Limited [2002] EMLR 215. The case was distinguished from Galloway -v- Telegraph Group Limited [2006] EWCA Civ 17 where allegations against a Member of Parliament suggesting that he was in the pay of Saddam Hussein and in receipt of money diverted from the Oil for Food programme were judged to be not a matter simply of reporting the allegations but rather of adopting and embellishing them. In the Roberts case, however, no steps to verify the allegations had been made but this was not necessary where the allegation was simply being objectively reported. Indeed, many of the Nicholls tests, as for example the source of the information, are of less importance in reportage cases. Reportage is defined as neutral reporting without adopting or embellishing the allegations or subscribing any belief in the truth of the attributed allegations of both sides in a political (or possibly some other kind) of dispute. The defence is therefore to that extent a qualification of the repetition rule in libel. Lord Justice Ward to some extent following the line of Lord Nicholls with his ten tests produced nine of his own, that the information must be in the public interest, that there is no need to ensure the accuracy of the published information, the thrust of the article must be not the reporting of the truth of the statements but rather the fact that they were made, the test is an objective and not a subjective one and it is for the judge to rule on the effect of the article to decide whether it is reportage rather in the same way as he would do in relation to the meaning of the words, the defence of reportage is lost if the journalist adopts the allegations and makes them his own, the publication must meet the standards of responsible journalism, the defence of reportage protects the journalist who takes no steps to verify his story, the parties need not necessarily be public figures and each publication in terms of reportage is to be decided on its circumstances and urgency of publication is not of itself essential.

In Prince Radu of Hoelzollern -v- Houston [2007] EWHC 2328 decided on 12 October 2007, there was an issue between the parties as to whether what was written in Royal Monthly under the headline “Scandal in Romania as Princess Margarita’s husband is branded as an impostor” could amount to neutral reportage of a press conference and as a case giving rise to Reynolds privilege. The question was whether decisions of fact as to the application of these defences should be tried by a judge alone or by a jury. Mr Justice Eady noting the difficulties which had been highlighted in Loutchansky -v- Times Newspapers [2002] QB 321 felt that it would be waste of time and costs to have to call in a jury to decide on disputed issues of fact.

The Jameel decision has been given added teeth by the approach of the Court of Appeal in Charman -v- Orion Books [2007] EWCA Civ 972 (11 October 2007). Lord Hoffman had indicated in Jameel that the Reynolds defence could apply to any medium. It had been thought that Reynolds was a nigh hopeless defence for book publishers, when even journalists with the pressures of the newsroom and the perishable nature of news were not, prior to Jameel, managing to surmount the Nicholls hurdles. The case concerned a book entitled Bent Coppers - the Inside Story of Scotland Yard’s Battle against Police Corruption by Graeme McLagan. As the title suggested, and as the court found, this was not neutral reportage. Predictably McLagan failed before Mr Justice Gray who felt that the Defendants had failed to show that they were acting responsibly in communicating the information contained in Bent Coppers. The Jameel decision in the House of Lords intervened. Mr Justice Gray was not subjected to the ferocious criticisms that had befallen Mr Justice Eady in the Jameel case, but he was considered to have failed to look at the bigger picture. It was felt that had he had the benefit of the Jameel decision, he would have doubtlessly have approached his task differently. As it was, his judgment failed to make any sufficient allowance for McLagan’s honesty, his expertise on the subject, his careful research and his painstaking evaluation of a mass of material. Furthermore, the judge had failed to take questions of editorial judgment sufficiently into account. The Court of Appeal were satisfied that this was a work of responsible journalism. Bearing in mind the care with which the book had been written and the fact that Charman had been requested to resign from the police force and had had the misfortune to be arrested and charged on an unrelated matter with conspiracy to pervert the course of justice although those charges were thrown out at a preliminary stage, there did appear to be matters of genuine public interest to be investigated. This was just the sort of case which Reynolds privilege should cover.

In summary therefore, the English courts are on the cusp of a significant expansion of Reynolds privilege and of allowing much greater latitude for the publication of responsibly written works of public interest. It is a product more of the common law and Article 10 of the Convention of Human Rights than of Sullivan -v- New York Times 376 US 254 (1964), but it does now provide meaningful protection for investigative journalism.

David Hooper

Reynolds Porter Chamberlain

Tower Bridge House

St Katharine’s Way

London

E1W 1AA

Tel: 020 3060 6295

David.hooper@rpc.co.uk

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