The Lance Armstrong case

The Sunday Times’ Court of Appeal victory has turned up the heat in the Armstrong libel battle.

This
summer was full of highs and lows for Lance Armstrong. He made sporting
history by becoming the first competitor in the Tour de France to win
it seven times consecutively – but in the legal arena, he was less
successful.

Armstrong is suing The Sunday Times over an article
entitled “LA Confidential”, which it published in June 2004. The
article referred to a book written by David Walsh, in which new
questions were raised about drugs in professional cycling and which
investigated the possibility that Armstrong had taken performance
enhancing drugs.

The matter has not yet reached the trial stage but already some blows have been exchanged in pre-trial skirmishes.

At
the end of last year, Armstrong applied successfully to the court to
have the newspaper’s defence of Reynolds qualified “privilege”, and
elements of its defence of truth struck out. Mr Justice Eady said that
the meaning of the article could be only that either Armstrong was
guilty of having taken drugs, or at least that there were reasonable
grounds for suspecting that he had. The judge rejected the newspaper’s
lower level of meaning – that there were grounds for investigating
whether Armstrong had taken drugs.

In any libel action, the
meaning attributed to the words “complained of” is critical, because it
affects the evidence that the defendant needs to make good its defence.
Although normally a question for the jury, the judge can make pre-trial
decisions striking out, or limiting the ambit of, the defence if he
takes the view that it is based wholly or in part on meanings that no
reasonable jury could conclude the words “complained of” bear.

In
the Armstrong case, the judge concluded that the Reynolds defence
should be struck out. He thought that the newspaper could not meet the
necessary requirement of “responsible journalism”

because the
newspaper could not be said to be under a duty to publish allegations
to the effect that either Armstrong had taken performance enhancing
drugs or that, because of his success, he “must” have done so.

Not
only did The Sunday Times lose its defence of Reynolds qualified
privilege but, as a result of the meaning that the judge gave to the
article, many of the paragraphs in the defence relating to truth also
fell away.

However, in July this year, The Sunday Times hit back
with a successful appeal whereby the Court of Appeal restored its
defence of qualified privilege. In a judgment that will hearten media
defendants, Lord Justice Brooke said that fairness demanded that the
merits of the newspaper’s Reynolds defence should be properly
investigated at trial. For example, the evidence regarding the sources
of the article and the attempts made to put the allegations to
Armstrong before publication should be subject to detailed examination
at trial. The court held that in this case it was not appropriate for
the defence to be disposed of summarily, as it had been by Mr Justice
Eady.

So it is Round Two to The Sunday Times and it remains to be
seen whether Armstrong takes an appeal to the House of Lords. Media
defendants have been concerned that it appears that the judges have
been applying the Reynolds criteria – laid down by Lord Nichols in the
House of Lords – as if they are pre-conditions to the defence being
available, rather than the more flexible test that Lord Nichols seemed
to be contemplating. The Court of Appeal’s decision in the Armstrong
case may herald a change of approach towards those criteria that media
defendants would welcome.

Catherine Hurst, associate, media and internet litigation group, Addleshaw Goddard

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