Louthcnansky and qualified privilege - 11 May 2001

Dr Grigori Loutchansky, a Russian businessman, recently won his High Court libel claim against The Times over two 1999 articles imputing possible involvement in the Bank of New York money-laundering scandal and links with organised crime. The case turned into a crucial test of the ambit of ‘Reynolds’ qualified privilege and press freedom.

Fifteen questions of fact were put to the jury, the most important of which was whether one of Times reporter’s sources gave him to understand that Dr Loutchansky was under investigation for involvement in money laundering.

The jury found in The Times’s favour in relation to this question and the majority of other questions that were put to them. It was, however, up to Mr Justice Gray to rule on whether the articles were published on occasions of qualified privilege, the only ‘live’ defence.

It was held that in cases of libel where qualified privilege was claimed, the mere existence of a legitimate public interest would not in itself suffice to establish privilege.

A claim to privilege could still fail where the duty to publish was not made out. The judgment reaffirmed that the foundation for the defence of qualified privilege is the existence of a reciprocity of duty and interest between publisher and the reader.

A right to know on the part of the reader could not be a trump card because it ignored the duties and responsibilities upon the publisher under Article 10(2) of the ECHR. The right might be legitimately curtailed where there was a need to protect the reputation of those affected by the publication in question.

In determining whether either of The Times’s articles were entitled to the immunity provided by a defence of qualified privilege, Mr Justice Gray considered the 10-stage test put forward by Lord Nicholls in Reynolds v The Times.

In relation to The Times’s first article he found that the source was one on which the journalist was entitled to rely.

Nonetheless, the status of the information was low grade, consisting as it did of a report or repetition of allegations, suspicions and claims that investigations had been or were taking place and this imposed a duty on the reporter to proceed with caution.

It also made it particularly important to contact the claimant prior to publication, which the reporter failed to do. In relation to The Times’s second article, Mr Justice Gray found that the main source was not one on which the journalist could rely and that no steps were taken to verify the story or obtain comment from Dr Loutchansky.

It was held that The Times was under no duty to publish either of the articles and that the defence of qualified privilege was not available.

 The Times has stated that it will appeal the decision.

Alexander Vaughan is a trainee solicitor in the Media Department of Crockers Oswald Hickson

Alexander Vaughan

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