Has the bar for responsible journalism been lowered?

In a recent ruling the European Court of Human Rights overlooked journalistic shortcomings in favour of upholding freedom of expression. The decision will impact on the Reynolds qualified privilege defence, also known as the defence of “responsible journalism”.

Selist v Finland concerned a Finnish journalist found guilty of criminal defamation in respect of two articles about the death of a patient as a result of an operation.

The Finnish court’s decision constituted an interference with the journalist’s Article 10 rights and the ECHR had to decide whether that interference was “necessary in a democratic society” and proportionate.

The articles were found by the national court to allege that the surgeon had an alcohol problem and was drunk or suffering from a hangover when performing the operation.

However, they omitted to mention that the Finnish County Prosecutor had decided not to press charges against the surgeon. Nor did they refer to the Finnish Medico-Legal Board’s conclusion that no link between the patient’s injury and the surgeon’s conduct could be established. While the articles did not name the surgeon, the court found that he was identifiable from them. The surgeon had not been given the opportunity to present his views pre-publication.

The ECHR noted that “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment”. However, it recognised that the safeguard afforded by Article 10 is subject to the proviso that journalists act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

The ECHR made findings and comments in Selist which will be of relevance when courts here consider what constitutes responsible journalism, including: * Journalists cannot be expected to act with total objectivity and must be allowed some degree of exaggeration or even provocation; * It is not for the ECHR, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists; * No general duty to verify statements contained in public documents can be imposed on reporters and other members of the media, who must be free to report on events based on information gathered from official sources.

While the Court found it “problematical” that the decision not to press charges against the surgeon was not mentioned, the journalist was insistent she had obtained a copy of that decision only after publication. The Court attached considerable weight to the fact that the surgeon’s name was not published in the articles. The surgeon had been provided with an opportunity to present his comments after publication and therefore the Court said it was “unable to find that [the surgeon] was not given a chance to defend himself or that the ethics of good journalism had been violated”.

This decision is at odds with recent decisions on the responsible journalism defence in this jurisdiction. The only English judge sitting in the ECHR, Sir Nicholas Bratza, gave a strong dissenting opinion. He found that while reporting such matters was undoubtedly in the public interest, the articles contained defamatory allegations of the utmost seriousness for the surgeon’s reputation and professional standing.

There was no sufficiently reliable information to support the allegations, the journalist’s reporting had been highly selective and her failure to obtain the County Prosecutor’s decision was inconsistent with the diligence expected of a responsible journalist.

He said the fact that the surgeon’s identity was not expressly communicated to the public was outweighed by the fact that he was identifiable in his own town, workplace and beyond his immediate circle.

Since the surgeon was given no possibility to comment in advance he was effectively denied the opportunity to defend himself.

The ECHR’s decision will also be music to publishers’ ears. However, it remains to be seen whether the English Courts will adopt a similarly generous approach to the concept of ethical journalism in future rulings on Reynolds qualified privilege. The imminent decision in George Galloway MP v Telegraph Group Limited might give an indication of this.

Nathalie Paterson is an associate in the media & internet litigation group at Addleshaw Goddard

Nathalie Paterson

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