The dangers of repetition

The publication this month of claims that Alan Yentob, the arts chief at the BBC, was being investigated for the alleged misuse of licence feepayers’ money provides a timely reminder of the severity of the libel laws on the re-publication and repetition of other people’s stories.

The background was that the Corporation is apparently clamping down on the abuse of expenses and a new unit was set up to report to the BBC finance controller John Smith. The file on the allegations had been in the in-tray of acting director-general, Mark Byford, for weeks before the arrival of new BBC director-general Mark Thompson, yet the Corporation decided to announce that an investigation was underway. Mr Yentob denies any wrongdoing and has offered to pay back any money if there has been any misallocation of department budgets or inappropriate expenses.

There may be BBC politics at the heart of this but Mr Yentob (who earned £301,000 in 2003) is a high-profile executive as well as a presenter and the probe was always likely to leak out. The information was made available to the media by the BBC and fair and accurate publication would be protected by qualified privilege – as long as the media sticks to the information actually provided by the parties (the problem is spin from their supporters – inevitably “sources close to … ” have had plenty to say).

Readers were, no doubt, avid for more background information (and gossip) about such investigations so newspapers started their own enquiries, which fell outside any privilege, and this led Alan Yentob to threaten legal action to defend himself against a “whispering campaign” of articles in the media.

It is very easy for a newspaper pursuing someone else’s story to go unwittingly beyond what is safe and find itself subject to the full rigour of the libel law. An example of this was Jeffrey Archer’s infamous legal action against the publishers of the Daily Star. It was the News of the World that broke the story in 1986 of his payment to a prostitute of £2,000 but the Star went further than the carefully legalled Sunday paper.

The News of the World did not accuse Archer of sleeping with prostitute Monica Coghlan (although it suggested he had gone to a hotel near Victoria Station with her) but the Star ran a report headlined “Poor Jeffrey: vice girl Monica talks about Archer – the man she knew”, which doubled his denial. In fact, the Star had not even interviewed Monica (just her nephew). The Star paid out £500,000 in damages, the News of the World only £50,000. Archer sued the Star , won, and then pursued the News of the World, which settled. Although a claimant can choose who he or she sues, a newspaper whingeing that other publishers should be in the frame as well finds little judicial favour.

A publisher can bring in as a third party to a libel action (known as a Part 20 claim) those it holds responsible for the original publication, but as it presumably did not bother to check the veracity of the information, and would have to admit that it pinched someone else’s story, this would not provide much of a defence.

It is too early to see if Mr Yentob will have to go to the law to restore his reputation (assuming he is exonerated) but newspapers may find that the smears and rumours from his enemies (presumably provided on an occasion of confidentiality) may not stand up to forensic scrutiny.

Although one can obtain an order for the disclosure of a third party’s material (such as the BBC’s investigation) this has a habit of not necessarily providing what one hoped that it would.

With the silly season now almost upon us and good stories hard to find, and worth running with, it is wise to remember that each publication can be a new and expensive libel, and the fact that someone else started it is no defence. Repeating the claims of other papers’ confidential sources can be a recipe for disaster.

Duncan Lamont is a partner in the media group of City solicitors Charles Russell.

Duncan Lamont

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