Lance's Race

Lance
Armstrong has raced to an early victory against The Sunday Times . He
has won a preliminary victory in his libel proceedings against the
paper and the journalist David Walsh concerning an article published in
June 2004 about whether he had taken performance-enhancing drugs. The
article drew on a book entitled LA Confidential co-written by Walsh.

Ruling
in favour of Armstrong (pictured below) on all but one application, Mr
Justice Eady struck out the lowest level of meaning of the article
contended for by the newspaper and its Reynolds qualified privilege
defence .

The newspaper sought to plead justification on the
basis that the article meant either that there were grounds to
investigate whether: a) Armstrong had taken drugs (known as a level
(iii)n meaning) or b) there were reasonable grounds to suspect that he
had (known as a level (ii) meaning).

Armstrong argued that the
article was incapable of bearing the level (iii) meaning. He argued
that the article meant either that he was suspected of taking drugs or
was guilty of having taken them (known as a level (i) meaning).

The
judge said the article was heavily legalled and used the ” transparent
device ” of couching the allegations in questions in order to bring
them within the level (iii) meaning.

The device was ineffective
as the impact of assertions such as “… a man who has won five Tours de
France in a row must have succumbed to the pressure of taking drugs”
remained, leaving the impression that Armstrong’s denials of
drug-taking “beggar belief”. Accordingly, he struck out the newspaper’s
level (iii)n meaning. The following key points arise from the decision:

  • raising questions rather than making direct accusations will
    not protect newspapers from the overall impression created by an
    article;
  • phrases such as “there are those that fear that …” are similarly ineffective; 
  • where the words complained of are capable of bearing a level (iii) meaning, the repetition rule still applies;
  • in considering whether the words complained of constituted “neutral
    reportage”, the court should determine whether, as a matter of public
    policy, the journalist should be entitled to rely on this in his
    defence or whether he is simply seeking to by-pass the repetition rule.

In testing the defence against the ten non-exhaustive criteria for
‘responsible journalism’ identified by Lord Nicholls in Reynolds, Mr
Justice Eady found:

  • the newspaper hadn’t taken independent steps to verify the
    information, nor had it attempted to contact Armstrong or report his
    version of events;
  • the article was ” sensational ” and not “measured, neutral reportage”;
  • the author of the book had contacted Armstrong, but had not put all the allegations to him.

Repeating his mantra that topicality or commercial expediency should
not be conflated with urgency,Mr Justice Eady found that, while
drug-taking in sport is of public concern, the newspaper had not been
under a duty to publish these allegations about this claimant at this
time, and without giving Armstrong a reasonable opportunity to respond.

The right to know test had not been satisfied and, therefore, the defence was struck out.

The
decision reinforces the difficulty faced by newspapers in arguing that
an article means merely grounds to investigate rather than grounds to
suspect or guilt.

It is also one in a long line of decisions by Mr Justice Eady finding against Reynolds qualified privilege.

His finding against the Wall Street Journal’s Reynolds defence in the Jameel case was recently upheld by the Court of Appeal.

Nathalie Paterson and Sarah McColl, Media and Internet Litigation Group, Addleshaw Goddard

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