Repetition rule kept alive by Court of Appeal

It is axiomatic for journalists that a libel action cannot be defended successfully merely on the basis that an article accurately reports defamatory allegations made by a third party. The journalist must be able to prove the substance of the allegations – the repetition rule, writes Nathalie McIntyre.

In a libel action brought by the Blairs’ former nanny against Associated Newspapers, the Court of Appeal recently reaffirmed the rule but indicated that the Reynolds defence of qualified privilege (a defence for responsible journalism) may develop further in the media’s favour.

The nanny wrote a book about her experiences despite having signed a confidentiality agreement. The Blairs obtained an ex parte injunction prohibiting publication of material from the book in The Mail on Sunday.  The next day, the Daily Mail published an article about what had happened. That article is the subject of the libel action.

The article included a statement made by the MoS that the nanny, Ros Mark, had authorised publication of material from her book and a statement from her denying having done so. The newspaper contended that the article was not defamatory because the MoS statement had been reported neutrally, without any indication to the reader that it was to be preferred. The paper relied on Strasbourg jurisprudence, in particular Thoma v. Luxembourg. It contended that the rule that "repeating someone else’s libellous statement is just as bad as making the statement directly" could not survive these European decisions.

In Thoma, the Strasbourg court held that a journalist’s Article 10 right to freedom of expression had been infringed by the Luxembourg court’s conclusion that he had adopted a fellow journalist’s allegations simply by failing formally to distance himself from them. The court concluded that "the general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation" was not reconcilable with the press "role of providing information on current events, opinions and ideas".

The Court of Appeal in the Mark case, however, saw no tension between the repetition rule and the relevant Strasbourg jurisprudence. Its decision in Al-Fagih clarified that the repetition rule relates to what the words complained of mean and whether they can be justified. Thoma, on the other hand, is relevant to whether a defendant has a defence of Reynolds qualified privilege, widening the circumstances in which it may be available in cases of mere reportage.

While the principles in Al-Fagih might be appropriate for further development, the court did not think the repetition rule needed revision because "to regard reportage as being incapable of harming a person’s reputation would be to introduce into the law a fiction which the repetition rule is designed to avoid".

Those vying for a rethink of the repetition rule may be disappointed but the judgment gives food for thought on the development of the Al-Fagih principles.

 

Nathalie McIntyre is an associate at Theodore Goddard

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