Following the important Court of Appeal ruling in Charman v Orion and McLagan, libel judges will have to make proper allowance for the editorial decisions of professional journalists and authors.
There’s now a robust quartet of precedents protecting freedom of expression: the cases of Reynolds, Bonnick, Jameel, and Charman, which have liberalised the libel defence of common law qualified privilege.
Any courts hostile to public interest publications which, it transpires, cannot actually be proved true, will now have to trim their sails to the liberal wind blowing from the country’s higher courts.
It’s worth taking stock.
In the innovative case of Reynolds v Times Newspapers as long ago as 1999, the House of Lords established that if a defamatory publication met the standard of “responsible journalism” as delineated in Lord Nicholls’ well-known 10-point test, a libel claim may be defended successfully on the basis of qualified privilege even if a story turns out to be untrue.
That principle was extended by the Privy Council in Bonnick v Morris in 2002, which said that in assessing “responsible journalism”, courts should give weight to a journalist’s reasonable subjective belief that the report in question did not bear the particular defamatory meaning that others might objectively see in it.
However, some High Court judges persisted in wrongly interpreting the Reynolds 10-point test as a series of hurdles at any of which the defence could fail, rather than simply as pointers.
That fallacy began to crumble last year. In Jameel v Wall Street Journal Europe, a case about reported terrorism investigations, the House of Lords indirectly criticised trial judges for failing to take on board the liberal spirit of Reynolds. Reynolds qualified privilege was re-branded as the “public interest publication defence” entailing a simpler 3-point test:
Still the media held their collective breath, unable to believe confidently that judges would give them appropriate leeway when assessing Reynolds “public interest” defences.
But nerves settled when the Court of Appeal issued another reassuring ruling last month [Oct 07] in Charman, which gave unambiguous guidance to libel judges.
Orion had published Bent Coppers, a book by author Graeme McLagan, which made allegations about police corruption. Mr Justice Gray decided the book bore the meaning that there were cogent grounds to suspect the claimant, ex-Metropolitan Police detective constable Michael Charman, colluded in a substantial fraud by a man from whom he and another officer received corrupt payments totalling £50,000.
Despite denials of wrong-doing and support from an MP in the House of Commons, the officers were charged with discreditable conduct and eventually dismissed from the Force in 2004.
Some parts of the book appeared to adopt various defamatory allegations; others were more neutral. The book said readers would get “the inside story”, but it also included balancing statements such as that Charman “strenuously denied all allegations of wrong-doing”.
In the High Court, the judge accepted that a publication need not be perfectly balanced in order to qualify as “responsible journalism”, but he felt that the author’s personal opinion of Charman had led him to give a distorted and unfair account of certain details, including information aired relatively briefly in another man’s criminal trial.
Dismissing the Reynolds defence, he disapproved of the author’s editorial selection of material and the emphasis given to certain parts of it in the book.
However, in the Court of Appeal, while Lord Justice Ward accepted that the book was “hardly a neutral, disinterested report”, he and his fellow appeal judges had no difficulty in finding it was “responsible journalism” protected by qualified privilege.
Ward LJ quoted approvingly Baroness Hale’s remark in Jameel that: “We need more such serious journalism in this country and our defamation law should encourage rather than discourage it”.
He also cited a comment by Lord Hoffmann in Jameel:
“The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.”
Perhaps most importantly of all, he reiterated the point made in Bonnick that editorial judgment should be respected by judges, not unsympathetically unpicked in hindsight.
He said: “In assessing the responsibility of the article, weight must be given to the professional judgment of the journalist. This is a very important point to emphasise.”
McLagan’s assertion that he did not intend to convey the defamatory meaning his words were held to bear was a “relevant factor to take into account”.
Ward LJ added: “Where opinions may reasonably differ over the details which are needed to convey the general message, then deference has to be paid to the editorial decisions of the author, journalist or editor…it is his assessment of that evaluation which is important, not the judge’s own evaluation of the material conducted with the benefit of hindsight and with the sharp eye of a trained lawyer. I do not see in [Gray J’s] judgment any sufficient allowance made for McLagan’s honesty, his expertise in the subject, his careful research, and his painstaking evaluation of a mass of material.”
On a cautionary note, this quartet of precedents does not provide carte blanche to publish unfounded defamatory statements. The courts will still provide adequate protection for reputations.
Nevertheless, after Charman, journalists and authors can finally have confidence that proper allowance will be made for their honestly made editorial decisions.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]
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