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Law Column: A liberating court decision for the press?

As the cogs of justice crank back up to full speed following the summer break, Northern Ireland’s publishers and journalists seem to have been handed a welcome boost by the Northern Ireland Court of Appeal (“NICA”).

Last week, NICA handed down a judgment on preliminary issues in the case of Loughran v Century Newspapers Limited.  Sir Gerry Loughran is a former head of the NI Civil Service, and Century is the publisher of The News Letter in Belfast.  And I should declare an interest by saying that Foot Anstey’s editorial team advises The News Letter.

The significance of the judgment for the press generally is that, for the first time, NICA has recognised and affirmed two very important libel principles.

The first of those principles relates to qualified privilege (“QP”) and the case of Curistan v Times Newspapers Limited.

As you will be aware, under Section15 and Schedule 1 of the Defamation Act 1996, certain statements and documents are protected by QP. Classic examples are a statement issued by the police, or a document issued by a government committee.

QP applies as long as the report is:

  • fair and accurate;
  • published for the benefit of the public on a matter of public interest; and
  • published without malice.

As all readers of this column will know, many publications that contain material protected by QP will also include other facts or background information – this raises several issues. Can the parts that are protected by QP be considered when looking at the meaning conveyed by the non-protected parts? And, in what circumstances do the parts protected by QP lose that protection?

Under Curistan, if part of an article is protected by QP, you can ignore the part that is protected when considering the meaning contained in the part that is not protected.

This means the parts that are protected by QP cannot be used by a plaintiff to give context and meaning to the parts that are not protected by QP. At a basic level, it allows the defendant to put a marker pen through the sections that are protected by QP, and evaluate the unprotected parts in isolation.

However, as always with the law, there is a very fine line to be drawn. The downside of the decision in Curistan is that if the journalist has intermingled extra facts with the material that is protected by QP, and this is found to have made the report unfair, QP will be lost.

As the late lamented Lord Denning once said, there is nothing wrong with printing a fair and accurate extract of material covered by QP, and then making fair comments on it. However, if the publisher adds its own “spice”, or “garnishes and embellishes” the story, the whole article will lose the protection of QP. To use Lord Denning’s very useful analogy, if the publisher puts “meat on the bones”, they must “answer for the whole joint”.

Although complex, the Curistan principle can be a very useful weapon in the armoury of the publisher. The good news for publishers in Northern Ireland is that for the first time, NICA has confirmed that Curistan applies in its jurisdiction.

The second interesting aspect of the Loughran judgment is that NICA has confirmed and applied the correct test in relation to malice. This is incredibly important, because if a plaintiff can prove the publisher acted with malice, QP will be defeated, even if all the other tests are satisfied.

In order to prove malice, there must be evidence of actual dishonesty on the part of the publisher (i.e the journalist), or that there was a “dominant motive to injure the claimant”.

Under the test previously used in Northern Ireland, malice could be inferred by a publisher being negligent, or “reckless as to the truth”, a much lower test for plaintiffs to meet.

It is safe to say that the bar of the malice test has therefore been placed at a substantially higher level, which will give reassurance to journalists and publishers in Northern Ireland.

The way that NICA applied all of the above law in Loughran is positive for journalism generally, and journalists throughout Northern Ireland should be encouraged that NICA has acknowledged and applied these principles for the first time.