When repeating an allegation made by another, journalists (along with PR agents, solicitors and others) should remember the ‘repetition rule’, which is relevant to the defence of justification in defamation claims. The rule is that where a second-hand allegation is to be justified, the allegation itself must be proven to be true. It is not sufficient to show simply that the allegation has been made by someone else. It was this rule which contributed recently to the sinking of Max Clifford’s defence of justification at a pretrial hearing of the defamation action which has been brought against him by Neil and Christine Hamilton.
The case relates to comments Mr Clifford made on GMTV and to various journalists, in the wake of the Hamiltons’ arrest following allegations by Nadine Milroy-Sloane that they had been present when she claimed to have been raped.
The policy behind the rule was explained in Stern v Piper. The rule is “designed to prevent a jury from deciding that a particular class of publication – a publication which conveys rumour, hearsay, allegation, repetition, … is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself”. What journalists should seek to avoid is a situation where they must prove the fact of the underlying allegation, rather than the lesser task of proving that the allegation was made or that they believed the allegation was, or might be, true.
How might such a situation arise? The key is the meaning that may be conveyed by the words used.
The Hamiltons claimed that the meaning of what Mr Clifford had said could only be one thing, namely, that they were complicit in rape. Mr Clifford, hindered by the fact that Ms Milroy-Sloane is now known to have made up her alleged rape, asserted that his words bore a different meaning, that “there were reasonable grounds to suspect the claimants … of guilt of those criminal offences”.
The Judge had to decide whether there was any possibility of the words used conveying a defamatory meaning to the reader or listener of less gravity than actual guilt.
The Judge considered the interview which Mr Clifford gave to GMTV during which Mr Clifford said “I totally believe what the young lady told me”. The Judge said those words could only be regarded as an endorsement or adoption of Ms Milroy-Sloane’s allegation of criminality against the Hamiltons. In light of the repetition rule, it was not enough for Mr Clifford to show that he believed the allegations at the time. For justification to succeed he would have had to prove that the alleged rape, and the Hamiltons’ complicity in it, actually happened.
The Judge held that it would be perverse for a jury to be given the opportunity to find that what Mr Clifford had said on GMTV conveyed a meaning of less gravity than that the Hamiltons were guilty of being complicit in rape. He therefore struck out Mr Clifford’s defence of justification in relation to that interview.
The lesson for journalists is to be wary of publishing articles which endorse or adopt the allegations of a third party (rather than neutrally reporting both sides of the case) unless they are able to prove the truth of those allegations. If the reader is likely to understand an article as meaning a person is guilty of an offence, the journalist must be prepared to prove that fact and not merely the fact that such an allegation has been made. Mr Clifford’s defence survives, just, on the basis that his remarks were made only to defend his reputation against attacks by the Hamiltons, and are therefore protected by qualified privilege.
Catherine Hurst is an Associate in the Media Litigation Group at Addleshaw Goddard