How can journalists protect themselves when reporting the existence of serious allegations of misconduct and what steps can be taken to minimise the risk of libel claims in relation to internet archive material? The Court of Appeal has recently given some practical guidance.
In Al-Fagih v HH Saudi Research & Marketing (UK) and in the more widely reported Loutchansky v Times Newspapers, the Court of Appeal applied the Reynolds "duty interest" and the "right to know" tests in the light of the standard of the "responsible journalist".
Lord Justice Simon Brown (who also sat on the Loutchansky appeal) gave the leading judgment in Al-Fagih. The case involved a claim by a prominent member of a Saudi Arabian dissident organisation, opposed to the existing Saudi Government. The defendant published a newspaper which supported the Government (and in part was owned by the Saudi Royal Family).
The newspaper reported an allegation that the claimant had spread malicious rumours concerning the family of a political rival. The newspaper limited itself to "reportage" (the neutral reporting of attributed allegations) but did not attempt to verify the allegations. It was accepted that the allegations were untrue. Reportage remains plainly defamatory under the repetition rule and the jury cannot be invited to treat it as bearing any lesser defamatory meaning than the original allegation.
However, the repetition rule relates only to justiﬁcation, and in relation to qualiﬁed privilege it is relevant to consider whether the publisher adopted the allegation as its own. In considering the threshold tests for qualiﬁed privilege, the court adopted Lord Hobhouse's approach in Reynolds - the court should ask itself what is in the public interest (so that the public can be informed) and what the publisher could properly consider his duty to tell the public.
The Court of Appeal was at pains to point out that veriﬁcation (or at least an attempt at veriﬁcation) of a third party's allegations would ordinarily be appropriate - and perhaps even essential - to meet the test of "responsible journalism". This was a theme they were to revisit in Loutchansky, where the reasoning in Al-Fagih was expanded and explained.
The court in Loutchansky put forward the following considerations in deciding whether the standard of responsible journalism has been satisﬁed:
lA ﬁnding of privilege will effectively be a complete defence and effectively pre-empt a ﬁnding of malice.
lIf the standard of journalistic responsibility were set too low, the court would effectively be encouraging a readiness to publish defamatory material. However, it is in the public interest for truths to be told.
lIf the standard were set too high, the court would deter newspapers from keeping the public informed. The court must bear in mind the likely impact of its ruling on the media's practices in general.
lThe question therefore is whether it is in the public interest for the article to be published - true or false - rather than whether it was in the public interest to publish an untruth.
In Loutchansky, the Court of Appeal also considered the application of the usual 12-month limitation period for defamation claims in respect of publication over the internet. The Times sought to apply the US doctrine of "single publication" so that placing a publication on its archive website would only amount to a single publication on the date it was posted rather than repeated publication every day it was available. The Court of Appeal held that it was unnecessary to change the law in this way. The sting of unadopted defamatory archive material should normally be dealt with by the attachment of notice warning against treating it as the truth.
Dinah Spence is an associate in the media group at Charles Russell