Post-Reynolds: Still be ready to defend defamation

Less than a decade ago, most journalists and media organisations had little hope of defending a libel if their allegations could not be substantiated. Then Reynolds turned that on its head.

In October 1999, former Irish Prime Minister Albert Reynolds brought a case against the Sunday Times in which judges ruled that the media could publish information even if it was both potentially defamatory and could not be proven in a court. This was on the condition that the public had a right to know, the information was of legitimate public concern, and that the process of gaining and publishing the information was responsible.

Despite this breakthrough, Adrienne Page QC spoke with caution about theReynolds’ defence at this year’s Media Law 07conference held at Reuters London HQ, and reminded journalists of the crucial measures they need to take to help avoid prosecution in such cases.

‘It is as important as ever that a journalist can demonstrate that he has made proper efforts to establish the accuracy of what he has written and that he not only believed it to be true but he can demonstrate a sufficient foundation of that belief,’Page said. She stressed the importance of a journalist giving the subject of a story a reasonable chance of responding.

‘Even though the judges know that newspapers operate to tight deadlines, it still plays out badly in court when the steps taken to put the story to the party affected are made very shortly before the paper goes to press,’she said. ‘And when the journalist gets that comment or response, it’s not a simple matter of ticking that box. He must consider whether that impacts on what he would otherwise have published and otherwise have believed about the truth of the story. Thought is necessary, so is analysis. The ability to support what is written is not merely subjectively rationalised or subjectively responsible.”

Journalists were told that if they were working on potentially libellous stories they should not only continue to make detailed notes, but also date them and keep them. They shouldn’t just write what a source tells them, but rather critically asses how reliable that source is and be prepared to show in court that they did so.

If there is doubt as to the source’s reliablity, journalists should question whether to publish the story or communicate that doubt in the article so readers can judge.

Every step taken to contact the subject should be logged. Page said: ‘Look for independent corroboration. If you can’t find it, think carefully about whether you should publish.”

The best advice to commend yourself as a journalist and impress the court is the advice of the The Washington Post’s Ben Bradlee: ‘The Post is pledged to an aggressive, responsible and fair pursuit of the truth without fear of any special interest, and with favour to none.

‘Post reporters and editors are pledged to approach every assignment with the fairness of open minds and without prior judgment. The search for opposing views must be routine.

Comment from persons accused or challenged in stories must be included.

‘The motives of those who press their views upon us must routinely be examined, and it must be recognized that those motives can be noble or ignoble, obvious or ulterior.”

Summing up whether the goalposts had been moved, Page said: ‘Indeed things have moved on since Reynolds was decided, in that reputation is now recognised by the courts as a right protected under the umbrella of article 8 of the European Convention on Human Rights. No longer is it fashionable to argue that the right of free expression under article 10 trumps the right to reputation.

‘On the contrary. The court is now expected to undertake an exercise of what has been described as parallel analysis ,whereby examine the justification for interfering with each right is excamined, and will intensely focus on the comparative importance of the right of reputation of the right to freedom of expression in each particular case.”

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