I had a day out with a bunch of lawyers last week, and despite what you might think, it really was very interesting and informative.

Media barristers 5RB held their bi-annual conference, which was attended by most of the country’s media lawyers, who listened hard and busily took notes.  A wide variety of topics were covered, but there was one subject which caught my attention, as I thought it might be helpful to regional journalists, especially those who investigate and hold power to account.

Early on in the proceedings, there was a discussion about the recent High Court decision in Economou v. de Freitas.  This case is based on a set of very sad facts which we don’t need to dwell on: suffice to say that Mr. de Freitas is the father of the late Eleanor de Freitas, who had a relationship with Mr. Economou.  She accused Mr. Economou of rape, who was arrested but never charged.  Ms. de Freitas then faced a trial of perverting the course of justice, but four days before it was due to start, she killed herself.  Mr. Economou then sued her father for libel on the basis of the information he supplied to The Guardian and The Telegraph, who had published articles based on his information.

The importance of the judgment for journalists is that for the first time, a Court has reviewed and considered the new(ish) ‘public interest defence’ contained in section 4 of the Defamation Act 2013.

But that’s not what I want to discuss today.

Rather, deep in his judgment, Mr. Justice Warby considered the responsibility of sources, as opposed to those of professional journalists.  The Judge said that the public interest defence is available to a “source or contributor who passes to a journalist for publication, information the truth or falsity of which is not within the knowledge of the contributor.  The contributor may well be entitled to rely on the journalist to carry out at least some of the necessary investigation……”.

In other words, your source might be providing you with incorrect information, but he is entitled to assume that you will carry out a proper investigation to get to the truth.

Back at the conference, the panellists discussed the implications of the judgment, and this particular point was picked up by Justin Rushbrooke QC.

Which got me thinking.

Bear with me whilst I digress for a moment.  Lawyers owe their clients a duty of care when they advise clients, and if they fail to comply with that duty, then they are negligent.  But different types of lawyers owe different levels of duties of care.  For example, a specialist media lawyer advising on, say, libel, owes a far higher standard of care to the client than a high street solicitor who has never dealt with a libel claim before.

So with this concept in mind, I asked Mr. Rushbrooke this question: as a source can rely on the public interest defence even if he has no knowledge as to whether his allegation is true or false (because he can rely on the journalist to get to the truth), can it be argued that a journalist working for a small publication with very limited resources in a distant part of the country, has a duty to investigate which is less stringent than the duty imposed on better resourced and better staffed national papers?

Obviously, if the answer to the question is ‘yes’, then the life of the local reporter would be made much easier.

Unfortunately, Mr. Rushbrooke said he couldn’t see how that argument would work.  He said the same duties to investigate and get to the truth exist for all journalists, irrespective of their employers’ resources.  In the gentlest possible way, he told me: nice try, but it won’t work.

To be honest, I was not really surprised at this free legal advice from one of the country’s leading media QCs.  But it was worth a try!

Still, at least regional journalists know where they stand when it comes to investigations.  The obligations remain unchanged by the judgment in Economou.  As ever, you have to probe, review, check (and check again), all relevant facts, and get as much written evidence as possible.

So nothing has changed: the devil remains in the detail.