When reporting allegations, it is prudent to verify.
In the recent case of (1) Russell English (2) James Trusselle v (1) Hastie Publishing Ltd (2) Peter Hastie (QBD), the judge stated that the court should be reluctant to hold that common law privilege was available in circumstances where it would confer a greater protection on the publisher than had been deemed appropriate by Parliament under the Defamation Act 1996.
Both claimants were established members of the London insurance community who worked for a reinsurance company ("Trenwick"). The first defendant published a monthly newsletter called The Insurance Insider, which circulated both among the London insurance industry and internationally. The second defendant was the editor of the newsletter, and he had compiled the article complained of.
The article reported that Trenwick had received a writ from an insurance company ("Fairmont"), and went on to detail the allegations made by Fairmont’s owner. The jury found the article to be defamatory of the claimants. The defendants claimed qualified privilege on the basis that the proceedings and allegations were matters of interest to the insurance community which the defendants had a duty to report. Further, the defendants stated that they had anonymously received copies of papers in Fairmont’s action, which contained credible information and that they were merely reporting the allegations without adopting them.
In finding for the claimants, the judge held that it was in no way determinative of the issue of privilege that the article complained of was a report of allegations even if those allegations were not adopted by the newspaper.
The court should be reluctant to find that common law privilege is available on the ground of reportage in circumstances where so to hold would confer greater protection on the publisher than Parliament had deemed appropriate under s.15 and Part 2 of Schedule 1 Defamation Act 1996.
In this case, qualified privilege could not be relied on. The allegations were serious and did constitute matters of some public concern, but the defendants should have proceeded cautiously, not least because it should have been apparent to them that the allegations came from someone with an agenda of their own.
The judge made reference in his judgment to Lord Phillips MR’s statement in Loutchansky: "Unless the publisher is acting responsibly, privilege cannot arise." In the present case, the judge felt that the defendants had proceeded with barely any attempt to verify the allegations or to seek the claimants’ comments.
Antony Whitaker is a consultant in Theodore Goddard’s Media and Internet Litigation Group