It has long been best journalistic practice to approach the subject of a story for their comment prior to publication. The response will provide balance to the piece, and might sometimes even change the dynamic or validity of it entirely.

But where do you stand from a legal perspective if you fail to approach the subject of allegations for comment before publishing?

The answer, as you would expect, is not straightforward.

Prior to the implementation of the Defamation Act 2013, publishers regularly relied on the “Reynolds defence” of “responsible journalism” to defend publications which were, on the face of it, defamatory.

The concept of “responsible journalism” was based on a list of factors, including: approaching the subject for comment prior to publication; the efforts made to verify the allegations; and all the circumstances of the publication, including its timing.

A publisher was never expected to ‘tick every box on the list’, but they were all relevant factors.

As readers of this column will know, Section 4 of the Defamation Act 2013 abolished the common law “Reynolds defence”, instead creating the statutory Public Interest defence.

However, the requirement at S.4(2) for the court to have regard to “all of the circumstances of the case” when assessing the publisher’s reasonable belief that publication was in the public interest clearly requires the Court to assess those same factors that the “Reynolds defence” covered. And one of the most important of those factors has always been whether the journalist approached the subject of a defamatory article for comment prior to publication.

The recent case of Packham v Wightman has provided a new insight on the issue, which is very much worth noting.

Chris Packham, a naturalist, television presenter and campaigner, brought libel proceedings against Dominic Wightman, Nigel Bean and Paul Read regarding online publications in the Country Squire Magazine (“CSM”). Mr Wightman was the Editor of the publication.

CSM published various articles about Mr Packham which accused him of three separate things:

1. Firstly, making fraudulent statements in order to raise money for the Wildheart Trust’s Sanctuary on the Isle of Wight to fund the journey of tigers from a circus in Spain;
2. Secondly, of concealing insurance payments made to the Sanctuary from potential donors, which meant he made statements which were misleading and dishonest by omission during the Covid 19 pandemic in 2020; and
3. Thirdly, of making false statements regarding the burning of peat during the COP26 summit in Glasgow.

It was accepted during the trial of Mr Packham’s claim that the Defendants did not seek comment from him prior to the publication of any of the above allegations. Yet, Mr Wightman and Mr Bean attempted to rely on a S.4 Public Interest defence. Mr Read denied legal responsibility for the publications, so did not outline a defence in the same way.

So, what effect did the failure to seek comment have on the public interest defence?

The justification from Mr Wightman and Mr Bean for their failure to seek comment was threefold. Firstly, Mr Wightman explained that he was naïve journalistically, secondly he believed Mr Packham was an “arrogant and dishonest individual” who would dismiss the weblog as “unworthy”, and thirdly he did not believe they had got anything wrong. He also believed each of the articles effectively contained Mr Packham’s side of the story, or at least its gist.

Whilst Mr Justice Saini found that whilst Mr Wightman and Mr Bean believed the stories were in the public interest, their belief was not reasonable. He found that the “approach revealed by the evidence is that rather than approaching the task with an investigative mind, these Defendants targeted Mr Packham as a person against whom they had an agenda”.

He went on to note that having an agenda in itself does not disqualify reliance on the public interest defence, as it is arguable that many publications have an “agenda”.

However, in this case Mr Wightman and Mr Bean approached the available information as proving fraud and dishonesty on Mr Packham’s part, when taken at its very highest, the information in fact only suggested that questions might be asked about the accuracy of fundraising statements.

Mr Justice Saini accepted that there was some initial investigatory work by Mr Bean, but that it did not support the allegations of dishonesty.

He went on to find that the Defendants did not give Mr Packham the chance to respond to the allegations prior to publication because “any answer he would give might contradict an agenda fixed on showing fraud”.

Following the publication of the initial allegations, Mr Packham wrote a Letter of Claim to the defendants, following which “any investigative journalism quickly gave way….to increasingly hyperbolic and vitriolic smearing of Mr Packham”.

In evidence, Mr Wightman accepted that he knew they were “verging into tricky territory” when he received the first article for publication, and that the article “needs a proper edit as Packham will sue”. Despite this, Mr Packham was still not contacted for comment, and Mr Justice Saini found the defendants’ reasons for this failure to be “not remotely sufficient explanation for a failure to comply with such a basic tenet of journalistic good practice”.

In this case, the public interest defence failed for many reasons, as Mr Wightman and Mr Beans were described by Mr Justice Saini as “doubling down in making further serious allegations of fraud as matters progressed, as opposed to responsible journalistic behaviour”.

That said, the importance of approaching the subject of allegations for comment prior to publication cannot be underestimated.

Mr Packham’s case concluded with Mr Wightman and Mr Bean being found liable and ordered to pay £90,000 in damages (the case against Mr Read was dismissed). Mr Wightman and Mr Bean will also be liable for a substantial proportion Mr Packham’s legal costs, which will not be insignificant.

We know from previous cases that it is possible to plead a successful public interest defence without having approached the subject for comment. However, and it is a big ‘however’, to rely on the defence without having made the approach for comment requires an extraordinarily good reason for that failure, and it will never be without substantial risk.

Whilst this case came down to more than the Defendants’ failure to approach Mr Packham for comment, in other cases such a failure could very well be the deciding factor for the public interest defence.

Every journalist is aware that best practice demands you should approach the subject of an article for comment prior to publication, and provide them with a reasonable amount of time in which to respond. Of course, commercial pressures will often mean that taking the time to make that approach for comment is not easy – after all, news is a “perishable commodity” – but if you don’t, make sure you have an exceptionally good reason for not doing so.