All journalists will have been told, on more than one occasion I am sure, that it is essential to keep your notebooks in order to assist in defending legal proceedings. But the thorny question is always: how long should they be kept for? And is it really necessary to do so ? Well, according to the High Court, the answers are “seven years” and “absolutely, yes!”, respectively.
A recent case, ABC v Tony Palmer, provides a very clear insight into exactly why all relevant notebooks and evidence should be retained for longer than all potential limitation periods.
But whether the decision should prompt wholesale change of publishers’ retention policies is another matter entirely. It’s a matter of balancing risk against day to day working practices. The background to the case is that in May 2015 ABC, the Claimant, pleaded guilty to nine counts of benefit related fraud when she appeared at an (unidentified) Magistrates Court somewhere in London. The Defendant, Mr Palmer, is a freelance journalist who specialises in court reporting and also posts stories to his blog, Square Mile News.
Mr Palmer was present in the Magistrates Court, and he published a fair and accurate report of the hearing and the convictions on his blog . The court report was published within a few days of the hearing . He kept his original notes, written in shorthand, as well as the court list and the photographs of the Claimant which he took outside of the court building on the day of the hearing.
In 2021, the Claimant issued High Court proceedings against Mr Palmer for misuse of private information, harassment, and breach of the General Data Protection Regulation, whilst also claiming she had the right to be forgotten because her conviction was now spent under the Rehabilitation of Offenders Act.
It was an unusual case for many reasons, not the least of which was that it proceeded to a full trial in the High Court with both parties representing themselves. During the course of the case, the Claimant alleged that the Defendant had not been present at the Magistrates court hearing and that he had misused her private information regarding her mental health because the information regarding her diagnoses was not mentioned in court.
There were significant differences in the versions of events given by the Claimant and the Defendant, with the Claimant also denying in evidence that she was guilty of the offences to which she entered guilty pleas and was convicted of in 2015. However, Mr Justice Griffiths was persuaded in all the circumstances, the Claimant was in fact guilty of the offences, and he took into account that she had been convicted of offences involving dishonesty – he therefore considered that the Claimant’s credibility was undermined on matters which were not corroborated by the evidence.
In contrast, Mr Justice Griffiths was persuaded by Mr Palmer’s evidence in all material respects – that he was present at the hearing, that his report was a fair and accurate summary of it, and that the Claimant’s mental health was referenced in her mitigation submissions. The contemporaneous evidence, in the form of the court list, his notebook, and the photos which he took outside court that day, were all absolutely key in this respect.
Ultimately, Mr Justice Griffiths ruled that there was no breach of privacy as the medical information has been disclosed in open court by the Claimant’s defence team in mitigation. The judge also ruled that Mr Palmer’s actions did not constitute a ‘course of conduct’ for the purposes of harassment, and that there was nothing in his behaviour which was anything other than reasonable in all the circumstances.
In relation to the claim that Mr Palmer had breached the General Data Protection Regulation, Mr Justice Griffiths found that none of the principles had been breached, noting that:
- The data Mr Palmer held was accurate (save for trivial aspects like a one letter mis-spelling in the Claimant’s address, which was reproduced from the court list which also contained the error);
- Mr Palmer had processed the data fairly and reasonably to produce a court report which was in the public interest which “he should be allowed to produce, and which was an exercise of his rights of freedom of speech and expression, and his legitimate work as a freelance court reporter. Those interests outweighed the Claimant’s interests in the circumstances of this case”;
- His retention of the data was necessary in order to defend himself from potential legal proceedings. The Judge’s comments were noteworthy in this respect:
The essential record in this respect was his reporter’s notebook. He retains all of these routinely, and operates on the basis that they should be kept for at least 7 years. That is in my judgment reasonable, given that normal limitation periods are 6 years and claims may be issued at the end of that period and not served immediately. Mr Palmer’s retention of records has enabled this trial to be conducted on the basis of good evidence. It is fortunate that he did retain his notebook, in particular. Otherwise, the untrue evidence of Ms C that he was not there, and that things that he reported were never said in court, might not have been so easily disproved. When, as in this case, there is a stark conflict of oral evidence, the retention of documentary records is vindicated. (emphasis added)
- All of the data which was contained in Mr Palmer’s report was “manifestly” made public by the Claimant herself by committing criminal offences and exposing herself to a public hearing, then being convicted based on her guilty pleas, and her representatives giving evidence in mitigation in open court. Further, Mr Palmer held no information regarding the Claimant which wasn’t derived from the public hearing in the Magistrates Court.
The claim that the Claimant had the right to be forgotten and therefore the piece should be removed now that her conviction was spent was more complex. However, the article had been deleted by Mr Palmer in order to try and avoid litigation over the matter, and ultimately Mr Justice Griffiths found that there had been no breach.
This case is noteworthy for many reasons, but the overriding point to take away is that retention of notebooks and relevant evidence is absolutely key in defending litigation. And whilst the limitation period for a libel claim to be issued (which is always at the forefront of reporters’ minds) is only one year, the limitation period for other potential claims is six years.
The facts in ABC v. Palmer are undoubtedly exceptional, and it would be an extreme reaction to suggest that journalists should keep every single note, email, item of correspondence, and Court list for seven years from the date of publication. But the fact remains Mr. Palmer was able to defeat a highly unmeritorious claim based on the Claimant’s “untrue evidence”, because he had been so meticulous in keeping his background materials.
Whilst no hard and fast rules can be given as to how long editorial records should be kept, every journalist and editor will have to make up their own minds about the period of retention, balancing practical realities against legal and evidential ideals.
But having once been involved in a case in which no defence could be mounted to a libel claim because a freelance lost his notes within seven days of publication, if you ask me how long a notebook should be kept, my answer will always be: “the longer the better”!