The defence of reportage will be lost if a journalist adopts what has been said and makes it his own or fails to report a story in a fair, disinterested, neutral way, the Court of Appeal said this week.
The comments came as the court dismissed a defamation claim brought by former policeman Michael Charman against publishers Orion and author Graeme McLagan.
- February 24, 2021
- February 1, 2021
- January 7, 2021
Charman had claimed that McLagan’s book, Bent Coppers, defamed him by saying that he had been corrupt.
The Court of Appeal upheld the defendants’ appeal against the decision by Mr Justice Gray at first instance that the book was not entitled to the defence of qualified privilege, saying that it had to be regarded as responsible journalism on a matter of public interest, and was therefore entitled to the protection of that defence.
But the court roundly rejected the defendants’ argument that the book was also entitled to the defence of qualified privilege on the grounds that it was reportage.
Lord Justice Ward, who was sitting with Lord Justice Sedley and Lord Justice Hooper, said Mr Justice Gray had rejected the reportage defence because McLagan had partially adopted a serious charge against Charman, failed to report the facts fully, fairly and disinterestedly, had not produced a neutral report and had not achieved the balanced approach he set himself.
The Court of Appeal recently examined nature of the reportage defence and its place within the Reynolds doctrine of qualified privilege in Roberts v Gable, said Lord Justice Ward.
“The critical point of that analysis is that the defence will be established where, judging the thrust of the report as a whole, the effect of the report is to not to adopt the truth of what is being said, but to record the fact that the statements which were defamatory were made.
“The protection is lost if the journalist adopts what has been said and makes it his own or if he fails to report the story in a fair, disinterested, neutral way.
“To justify the attack on the claimant’s reputation the publication must always meet the standards of responsible journalism as that concept has developed in Reynolds, the burden being on the defendants.”
This was how the balance between the right to freedom of speech guaranteed by Article 10 of the European Convention on Human Rights and the Article 8 right to respect to privacy and family life, which includes the right to reputation, was maintained.
The Roberts v Gable case was a good example of reportage as the defendant newspaper simply republished the allegations and counter-allegations of two politically opposed factions within the British National Party, said Lord Justice Ward.
But this case was “miles removed” from the confines of reportage, he went on, adding: “A defining characteristic of reportage is missing in that this book was not written to report the fact that allegations of corruption were made against Charman and the fact that he denied them and in turn accused the investigating officers of plotting against him.
“The whole effect of this book is, as its sub-title makes plain, to tell the ‘inside story of Scotland Yard’s battle against police corruption’ and the tale includes Charman’s alleged corruption.
“McLagan was making a story, his story, of that corruption. This book, read as a whole, is a far cry from McLagan’s simply reporting Brennan’s account of corruption and Charman’s refutation of it and counter-charge of his malicious mistreatment by other officers?
“This was a piece of investigative journalism where McLagan was acting as the bloodhound sniffing out bits of the story from here and there, from published material and unpublished material, not as the watchdog barking to wake us up to the story already out there.
“As the judge found, he drew upon much more than the reports already in the public domain. He was not just reporting published material.”
He added: “The fact is, and McLagan admitted it in cross-examination, this was the ‘inside story’, the story of corruption in the Met which McLagan set out to tell in Bent Coppers. That was the whole point of the book. Looking at the book as whole, it was hardly a neutral, disinterested report, even if the excerpts reported were factually accurate.”
Lord Justice Sedley said: “I do not think the case can possibly rank as a reportage case. Apart from anything else the book is much too wide-ranging to come within a class designed only to protect the factual reporting in the public interest of a dispute containing defamatory matter.”
The reportage doctrine could not logically be confined to the reporting of reciprocal allegations, he said, adding: “A unilateral libel, reported disinterestedly, will be equally protected.”
But this case bore no substantive resemblance to other reportage cases.
“These were all cases of a self-contained account of a dispute, libellous in its content but reported without adoption or more than marginal embellishment.
“It is the very dependence of a reportage defence on the bald retailing of libels which makes it forensically problematical to fall back upon an alternative defence of responsible journalism. Pleaders may need to decide which it is to be.”
Mr Justice Hooper dismissed the reportage issue as “hopeless” and “doomed to failure”.