The Law of War

Before any shooting war in Iraq comes the propaganda war fought in our newspapers and on television, writes Duncan Lamont. Editorially, journalists have a difficult enough time working out the difference between spin doctors’ gas and poison gas, but the law has its part to play in the full reporting of the build up to war as well.

Recently, Prime Minister Tony Blair published the UK’s long-awaited dossier of evidence against Iraq. The 50-page report, based on intelligence and United Nations inspectors’ reports, set out details of Iraq’s weapons of mass destruction programme. Individuals and companies have been named and shamed.

Allegations of involvement in death and destruction are clearly defamatory, but since the Derbyshire County Council v The Times case in 1993, governments and state-run corporations are not able to sue over libellous criticism about the way they are run. The same principles will stop Iraq, as a country, making a complaint.

The law of qualified privilege covers not just elected bodies (hardly an issue in Iraq) but governmental bodies such as the British Coal Corporation (which could not sue the National Union of Mineworkers’ newspaper in 1996) and political parties such as Sir James Goldsmith’s Referendum Party (which could not bring a libel claim in 1997).

But controversial individuals can sue (Saddam Hussein for libel in Paris in 1997 – he lost; and Colonel Gaddafi’s son in London against The Daily Telegraph earlier this year – he won).

To name someone or a company in connection with such a serious allegation as involvement in war (or terrorism) is a dangerous business unless covered by qualified privilege. Get the wrong name (if this is the responsibility of the journalists) and, as the BBC has recently found, one can face a multimillion-pound libel suit.

The law recognises the importance of encouraging statements made from a social or moral duty. No surprises then that this allows the Government to libel people as it chooses. And the media is able to report those fingered by the state in its official dossiers and press releases such as the dossier on Iraq. However unfounded the allegations may turn out to be, so long as they were uttered on a protected occasion they are privileged unless made maliciously.

And things said in Parliament, such as court reports, are even safer for the media to report. So companies, scientists, generals or whoever, named by Blair or his Ministers, can be defamed without a remedy against the press.

Official public pronouncements can be published without the need for a right of reply. A mere notice or other matter, which needs to be issued by a person in departmental authority, has protection, but the newspaper may need to give a reasonable right of reply to the person or organisation defamed. I doubt that Iraq will, however, exercise this right too frequently.

This qualified privilege would not, however, cover leaks from sources or off-the-cuff comments from junior officials, so journalists need to be satisfied that the allegation is official before feeling free to publish it without worrying about an expensive libel action.

The cost of getting it wrong, and facing a libel claim, is so high that many newspapers will rely a little too much on information issued by the Government attacking Iraq and those individuals and companies who (allegedly) support the evil regime.

The over-hyped Reynolds defence, which was meant to allow the press to make honest mistakes about public figures and matters of genuine public interest, is being restricted by the courts, which place great emphasis on every journalistic lapse (not following Lord Nicholls’ 10-step formula to the letter, for example), so investigative journalism may be unable to do much to inform. So let’s hope what Tony tells us is true.

 

 

 

Duncan Lamont is a media partner in City law firm Charles Russell

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