The case of Reynolds v Times Newspapers decided that provided journalists meet the requirements for “responsible journalism”, they will have a defence of privilege to a defamation action concerning a matter of public interest. Relevant factors include the source, status and nature of the material, the urgency of publication, and the steps taken by the defendant to verify the information, including whether a response was sought from the claimant. But are these factors applied in the same way to contrasting stories such as The Daily Telegraph’s allegations about George Galloway’s dealings in Iraq and The Sun’s story about John Leslie’s behaviour in England? Further guidance has now been given by Mr Justice Gray in the case of Al Mismad v Azzaman Limited & Others. The case concerned a series of articles in Azzaman Arab International Daily, an international publication, which is mainly sold abroad. The articles made various allegations about the claimant, Sheikha Mouza – the second of the three wives of HH Emir of Qatar – concerning the abuse of her position as the wife of the ruler of Qatar.
The claimant applied for summary judgment, arguing that Azzaman’s defence of privilege was bound to fail as it had failed to verify its sources and had not approached the claimant for her side of the story.
Azzaman argued that the Reynolds test for privilege was flexible and had to take into account the facts of the individual case, particularly in cases where the publication is directed at a non-English audience in nondemocratic countries, discussing matters of public concern in a country where opposition is not permitted and there is no free press.
It argued that had Azzaman approached the claimant, she would not have responded in any event.
Given the political situation in Qatar, it was also impossible for Azzaman to verify its sources due to the threat of reprisals facing those who dissented against the ruling family.
Mr Justice Gray held that Azzaman’s defence was not suitable to be thrown out without trial. The Reynolds test was indeed a flexible one. The extreme difficulty in verifying the allegations and the evident unlikelihood that the claimant would have responded to any enquiries may excuse the failure to do things that would normally be fatal to any defence of privilege.
This is not the first time that the Reynolds test has been modified to take account of the particular circumstances of the case. However, Mr Justice Gray recognised that the application of the Reynolds test is still in the early stages of development and is an area of law where summary determination is inappropriate. He also emphasised the need for particular care in cases where granting summary judgment would interfere with the journalist’s right to freedom of expression.
The case does not depart from the principle that in order to benefit from the privilege defence, journalists must exercise professional skill and care. But it does show that in cases with an international dimension, it may be unreasonable to expect journalists to verify their sources where political factors make it very difficult to do so, or to seek the claimant’s side of the story where this would prove a pointless exercise.
Mr Justice Gray’s judgment did not determine the issue of privilege. It merely decided that Azzaman’s case was not so weak as to deny it the right to a trial. However, it will be interesting to see how this approach is applied in other cases with an international dimension. For example, if The Daily Telegraph runs a defence of qualified privilege against George Galloway, it may well be that the test for responsible journalism will accommodate its difficulty in verifying its sources.
by Ashley Hurst