When journalists report allegations of political scandal made by a potentially unreliable source they should know that they are playing with fire. In order to make defamatory allegations “safe” in legal terms, a newspaper should be extremely careful not to endorse groundless allegations as facts, and should do everything possible to ensure that it can rely on the legal defence of meaning , that it is not capable of being defamatory, or of qualified privilege. A notable recent story from the Sunday papers can help to illustrate some of the limits of this protection.
On October 31 2004 the Sunday Times published a front-page article under the headline “Blairs Fight Cheriegate Smear”. Readers were referred to a two page spread which covered the scoop in greater detail. The article dealt with allegations made by the disgraced Australian conman Peter Foster, who had been at the centre of the “Cheriegate” property scandal in 2002. The paper reported how Mr Foster now claimed that he was in possession of documents that proved that the Blairs had sought to exploit a secret Caribbean trust in order to avoid British tax. The allegations had been put to the Blairs and their strong denials were published in the body of the article.
Despite the prominence of the story and its provocative headline, a reading of the full text of the articles revealed that Mr Foster’s documents were of dubious authenticity and that his allegations were totally unsubstantiated. One front page and a double spread later, the essence of the story was neatly summarised in the article’s final sentence: “The Blairs deny owning an offshore trust and Foster’s mysterious documents are certainly no proof that they ever did.”
Stories such as this, which rake over the ashes of old political scandal and put back in the public arena, even if critically, the unfounded allegations of an unreliable source, are obviously fraught with legal danger for a newspaper. However careful a journalist is to make it clear that the allegations repeated in his story are actually unfounded, it is easy to see how such an article may give the impression to readers, and potentially a judge and jury, that there is no smoke without fire. There is always the danger that it will be possible to find a passage that does not do enough to discredit an allegation, and could be argued to have adopted the defamatory sting.
Most journalists are now familiar with the need to apply the tests set out by Lord Nicholls in the case of Reynolds v Times Newspapers when trying to establish how far a piece of investigative journalism on a matter of public interest will be protected by qualified privilege. The “tone” of an article was identified in that case as an important factor for a judge to bear in mind when deciding whether a story deserved the protection of qualified privilege. The positioning and space devoted to an article are important factors in assessing its “tone”. Where a newspaper has given a story a screaming headline, and a lot of prominent column inches, it will have to be vigilant to ensure its attempts to disassociate itself from defamatory allegations are not undermined by the tone of the article.
The Sunday Times article fulfilled many of the criteria required for protection by Reynolds’ qualified privilege: these were serious allegations on a matter of legitimate public interest; the allegations had been put to the Blairs and their firm denials published; Mr Foster’s dossier of tax documents had been investigated very thoroughly and exposed as inauthentic.
However, the fact that the paper had chosen to dwell so prominently, and at such length, on allegations made by a known conman with an axe to grind might be seen by some on the bench to be pushing the envelope of Reynolds’ protection too far.
Monica Bhogal is a solicitor in the Media Group at Charles Russell.