Defamation Update: Part 3 – Heather Rogers QC

1 04 2011

This is the third of a three part post dealing with the key libel cases over the last twelve months or so in England and Wales.  Part 1 was posted on 29 March 2011 and Part 2 on 30 March 2011.

Responsible reporting on matters of public interest

The Reynolds defence – or Reynolds/Jameel defence – is meant to provide proper protection for responsible reporting on matters of public interest. The essential requirements for the defence can be summarised as:

(1)  Does the publication concern a matter of public interest?

(2)  Were the steps taken to gather, verify and publish the information responsible and fair?

See Reynolds v Times Newspapers Limited [2001] 2 AC 127 HL, which created the defence, and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 HL, which revitalised it.

The courts have stressed that, to give proper protection for responsible journalism, the defence must be applied in a practical and workable manner: Bonnick v Morris [2003] 1 AC 300 PC; Harper v Seaga [2009] 1 AC 1 PC. A media defendant cannot, under the guise of this defence, “drag in damaging allegations which serve no public purpose”, but the court should allow for “editorial judgement” about which details it is appropriate to include in a report: see Lord Hoffmann in Jameel at [51].

 

This defence was used successfully by defendant publishers (on appeal) in Charman v Orion [2008] EMLR 16; and “Searchlight” succeeded (both at trial and on appeal) in Roberts v Gable [2008] QB 502 (a neutral report of a dispute within BNP). But the first case in which a national newspaper won at trial on the basis of a Reynolds/Jameel defence was Flood v Times Newspapers Limited [2010] EMLR 8 (Tugendhat J).

The article in the Flood case concerned an allegation of corruption (divulging confidential information for money) which was the subject of an internal police investigation. That police investigation concluded after the original publication of the article: it was unable to find any evidence against the claimant: [4]. The judge upheld the defence in relation to the publication of the article in the hard copy of the newspaper and the initial online publication, but found that the protection was lost in relation to the continuing online publication, which remained the same after the newspaper was aware of the findings of the police investigation. It was not “responsible journalism” to continue to publish without a “suitable qualification”; the continued publication was “not in the public interest”: [249].

The partial victory for the newspaper at trial was short-lived. The judge, after a careful analysis of the evidence and legal principles, had balanced the right to reputation and freedom of expression [200-219], before concluding that the decision to publish was within the permissible range of editorial judgment. But the Court of Appeal disagreed [2010] EMLR 26. It found, unanimously, that the Reynolds/Jameel defence did not protect the original report: having named the claimant, the report contained too much detail of the allegation which was being investigated. The Supreme Court has granted permission to appeal.

Whatever happens on the appeal, the Flood decision indicates that a rebalancing of the law, in favour of Article 8 rights, is underway in the area of defamation (as well as misuse of private information). The judge referred to the passage in Lord Nicholls’ speech in Reynolds v Times Newspapers where, after having set out the essential test and illustrative guidelines (at page 205A-C), he ended his summary of the relevant principles (at page 205F) with these words (emphasis added):

“Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

Tugendhat J observed at [146] that the last sentence (in bold) above could not stand in the light of the present state of the law, taking into account of the HRA, the Strasbourg cases and the approach set out in Re S [2005] 1 AC 593 HL in which (as is well-known) Lord Steyn identified four principles relating to arts 8 & 10 from the Naomi Campbell case:

“[17]      …  First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

The Court of Appeal agreed with the judge that the last passage from Reynolds had to be revised: [2010] EMLR 26 at [21]:-

“..although the point was not mentioned in Jameel [2007] 1 AC 359, I agree with the Judge (at … paragraph 146) that the last sentence in the passage quoted above .. from Lord Nicholls’s opinion cannot stand following the 1998 Act: it is clear from In re S .. … and .. BBC .. that Articles 8 and 10 have equal weight.”

The judge’s conclusion in Flood was that the essential tests in a defamation case (as in a misuse of private information case) came down to:-

“whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to reputation“. see [2010] EMLR 8 at [148]; see also [142], [146], [148-149].

 

Finally, a minor note about the Reynolds/Jameel defence: in Ashcroft v Foley Tugendhat J struck out a reference to the journalist having made contact with a ‘number of sources’, when it was not alleged that any useful information had been obtained as a result of such contact. He accepted the submission that a journalist could not “collect “brownie points” for having rung round a number of people who had no relevant information to give. It does not advance the debate in any way”: [65-67].

 

“Conventional” qualified privilege

In Clift v Slough Borough Council [2011] EMLR 13, the Court of Appeal considered how the Human Rights Act 1998 affected a local authority’s defence of qualified privilege in a defamation case. The claimant sued after the council sent an email to a number of people, informing them that her name had been put onto its “violent persons register”. The claimant had become incensed about the behaviour of a council employee towards her when she telephoned to complain after an incident in a public park. The jury had rejected a defence of justification and the judge found that publication of the information relating to the claimant was protected in relation to some, but not all, of the publishees. The jury found no malice. The claimant was awarded £12,000.

The claimant contested the claim for traditional qualified privilege on the grounds that publication had not been necessary or proportionate to the aim of protecting the council’s employees. (The claimant had relied on the requirements in Huang v Secretary of State for the Home Department [2007] 2 AC 167 at [19]). The judge, Tugendhat J, drew a distinction between communication to “customer-facing staff” in specific departments (protected by privilege) and wider publication (not protected): [38]. He looked in detail at what had been communicated and to whom, applying an objective test of relevance to “every part of the defamatory matter published”: [103]. His approach was markedly different from the established approach in a duty/interest case, particularly where there is a pre-existing relationship between publisher and publisher: compare, eg, Horrocks v Lowe [1975] AC 135 HL and Kearns v General Council of the Bar [2003] 1 WLR 1357 CA. On such an approach, publication to all of the council’s employees might well have been protected.

The Court of Appeal dismissed the council’s appeal. The fact that there was an established relationship between the council and all the publishees was not enough, of itself, to mean that publication to everyone was privileged. The court distinguished Kearns on the basis that the defendant in that case, the Bar Council, was not a “public authority”; but it showed a clear preference for the (conflicting) approach in Wood v Chief Constable of the West Midlands Police [2005] EMLR 20. While it was “sometimes” possible to hold that a publication was privileged by looking at nothing more than the pre-existing relationship between the parties, this was not a case of “off-the-peg” privilege: see [23], [31].

The council, as a public authority, had a number of duties towards the claimant, including an obligation to respect her Article 8 rights; so the core question was whether the publication of the information to all the publishees was “proportionate”: [33]. The judge had held that it was not and he was right so to hold. The Court of Appeal considered that it could not be disproportionate for a local authority to do what it was bound to do anyway, [35]

“whether in performance of its public law responsibilities, or its duty under the Data Protection Act 1998 or the Information Commissioner’s Data Protection Act 1998 Compliance Advice used in the public sector, each of which is to all intents and purposes to the same effect. Ill-considered and indiscriminate disclosure is bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly have the need to know or those reasonably thought to be at risk can outweigh the substantial interference with the right to protect reputations.”

The Court of Appeal dismissed the arguments put forward by the Council, both in terms of principle and pragmatism [38-48]. An application for permission to appeal to the Supreme Court has been made.

Although Clift concerned a public authority, the “proportionality” argument could well be rolled out into cases against other defendants, particularly if they are bound by duties imposed by the Data Protection Act, codes of practice or other regulations requiring responsible behaviour. Note, too, that Clift was concerned only with proportionality in relation to the extent of publication. As a result, the Court of Appeal may turn out to have underestimated the potential difficulties in considering proportionality in relation to content: on this, it would be unfortunate to have any retreat from the approach in Horrocks v Lowe.

 

Finally on Clift, the Court of Appeal thought that damages for defamation would exceed damages for breach of the Human Rights Act 1998: [46]. Where reputation is in issue, public authorities are likely to continue to face defamation claims either instead of or as well as claims under the HRA.

The decision in Cambridge v Makin [2011] EWHC 12 (QB), referred to above on justification, is more interesting on the issue of qualified privilege. The defendant claimed that all the publishees had a relevant interest in receiving the defamatory publication, since they all worked as interpreters of in the criminal justice system (so were affected by a “no confidence” motion) and/or were members of professional associations directly affected by the matters addressed [154]. It was admitted that part of the publication – to people entitled to vote at the AGM – was protected by privilege. But the judge held that the rest was not privileged [198].

The reasoning is curious. Firstly, factors which are relevant on a “Reynolds/Jameel” defence were imported into the consideration of whether “conventional” privilege applied. The judge considered that the defendant had published “without any proper factual basis, and without any inquiry and without giving the Claimant the opportunity to rebut it” [198]. These might (formerly) have been considered relevant to malice, but not to whether privilege existed. Secondly, and more curiously, the judge seems to have found that the occasion would have been privileged, if only the allegation had been true or, at least, if it had been found to be true by an appropriate body:

“[201] If the charge that the Claimant abused her position by preferring her private interests to her duties as a director had been found to be established by an appropriate investigating body, then I would have reached a different conclusion in relation to the charge the Claimant does complain of. I would have held that the Defendant and the persons on the Defendant’s list, selected as he describes in his witness statements, did have the required reciprocal interests. The registrants were not required to be members of CIOL. But if a director responsible for the Register was abusing her position by preferring her private interests, then in my judgment that would have been of legitimate interest to those interpreters who might consider being registrants, as well as those who actually were registrants. It would have been of interest to interpreters who practised in the public service. It would have had a potential financial impact upon all of them.”

Of course, a defendant who proves the substantial truth of an allegation would not need a defence of privilege. But, on this reasoning, even if the justification defence were to fail – or even if it were (later) to turn out that the decision of the body was wrong – the occasion of publication would retain its protection of qualified privilege.

But the focus on the facts was, in short, on whether the defendant had acted responsibly (in terms of the content of his communication), rather than on the relationship between the publisher and publishees. The judge held that if the “necessary reciprocal duty/interest” had existed, he would have held that the entire publication was privileged:

“[203]  …the mode of publication adopted for the purpose of communicating with those persons who had the necessary duty or interest in relation to the subject matter of the communication was in all the circumstances reasonably warranted by the exigency of the occasion. I would have held that the communication the Defendant effected by means of the Internet was reasonable and proportionate having regard to the interest sought to be protected.”

In the event, the critical question was not privilege but malice: the defence failed even in relation to the limited publication, which was protected by privilege, because the judge found that the defendant was malicious [218].

 

Statutory privilege

 

In McKeown v Attheraces Limited (mentioned in Part 1 of this post) Tugendhat J accepted that the claimant might be able to persuade the jury that the statutory privilege which protected a fair and accurate report of a finding of a disciplinary panel of the British Horseracing Association did not apply, on the grounds that the defendant had “adopted” the findings in its programme or that the report was not fair.

Remedies: damages, injunctions and statements in open court

Recent awards of damages include:

  • Farrall v Kordowski (28 January 2011) Lloyd Jones J assessed damages at £10,000 for the publication of false allegations about a solicitor on a website. The allegations were without foundation; there had been no effort to check them; the claimant had not been contacted; and the defendant had offered to take down the allegations, for a fee.
  • Clift v Slough Borough Council: £12,000
  • Cambridge v Makin:  £30,000
  • Metropolitan International Schools v Designtechnica Corpn [2010] EWHC 2411.  Tugendhat J found that an award of £50,000 was “necessary to demonstrate the falsity of the allegations”.
  • Bowman v MGN Limited [2010] EWHC 895 (QB)  In an offer to make amends case, Eady J assessed compensation at £8,500, with a 50% discount “because of the early apology, the willingness to remove the offending words immediately and the very prompt reliance on the offer of amends regime.”  As a result, the claimant was awarded £4,250.

There have been recent examples of interim injunctions being granted to prevent the publication of defamatory allegations on an interim basis, where the words were obviously defamatory and there was no defence: ZAM v CFW [2011] EWHC 476 (QB) (7 March 2011); Farrall v Kordowski [2010] EWHC 2436 (QB) (the “Solicitors from Hell” website).

Statements in open court continue to be made and reported. Note that CPR 53 PD is to be amended, with effect from 6 April 2011, to provide for statements in open court to be made not only in cases of libel and slander (as at present), but also following settlement of claims for “malicious falsehood and misuse of private or confidential information”)

Costs

The question of costs continues to be a major factor in practice. Consultation is underway in relation to the Jackson Report. Whether – or when – legislative or rule changes will be introduced is unknown.

Meantime, the ECtHR – finally – gave its decision in MGN v United Kingdom: application  39401/04 (20 January 2011), [2011] ECHR 66. The decision appeared just before the 10th anniversary of the publication of the article and photographs that had given rise to Naomi Campbell’s landmark claim. The ECtHR held that the requirement that MGN pay a 100% success fee recoverable under the conditional fee agreement in that case was “disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.”  Its impact remains to be seen.

Small steps have been taken to look at costs in defamation proceedings. The “pilot scheme” for the management of costs in defamation under CPR 51 has been extended to 30 September 2011 “to allow collection of further data”. There is a specimen form to be completed, which is available on the courtservice website.

 

Miscellaneous cases to note

In a short judgment in Brady v Norman [2011] EWCA Civ 107, the Court of Appeal considered whether the approach to the disapplication of the one-year limitation in defamation cases, as set out in Steedman v BBC [2002] EMLR 318 (a ‘largely unfettered’ discretion, to be ‘applied according to its terms’: see [6]) required revision in the light of Cain v Francis [2009] QB 794 CA (a personal injury case, in which Steedman had not been cited, where the court took a different approach: see [9]). The Court of Appeal rejected the argument that Steedman and Cain could not be reconciled – defamation claims were different and the policy behind the shorter limitation was clear – so that, on analysis, the two cases represented “different manifestations of the application of the same principles to be derived from the different circumstances to which adjacent sections of the 1980 [Limitation] Act” were applicable [21]. The Master and the judge had been fully entitled to hold that the claimant had not made out a case for disapplication of the normal rule.

 

In Shergil v Purewal [2010] EWHC 3610 (QB), Sir Charles Gray stayed a libel claim on the grounds that it was “non-justiciable”, because the trial would require the court to rule on a doctrinal and religious issue which has arisen within the Sikh community.  And although the Court of Appeal gave permission to appeal in North London Mosque Trust v Policy Exchange [2010] EWCA Civ 526, which might have been interesting on the question of capacity to sue, the case settled.

In Pritchard Englefield (a firm) v Steinberg [2011] EWHC 48 (QB), Eady J rejected an attempt to set aside a judgment from 2003 (allegation of deceit): on a libel claim for a very limited publication, the claimants had obtained summary judgment and damages of £5,000 (£1,000 for a solicitors’ firm and £4,000 for one of its partners). Although an abuse of process argument might well have been run in the original case, if the (later) decision in Jameel v Dow Jones [2005] QB 946 been available, it could not now be determined whether such an application would have succeeded; and it would be “contrary to public policy and the need for finality for cases to be re-opened years later in the light of developments in the law or practice that subsequently took place”.

Heather Rogers QC is a barrister at Doughty Street Chambers.  This is the first part of a paper delivered at the 18th Annual IBC Conference on Defamation and Privacy, held on 15 March 2011.

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21 07 2011
Suggested Background Reading | 3rd Media Defence-South East Asia Conference

[…] –          Heather Rogers QC briefing on ‘responsible journalism’ defence: https://inforrm.wordpress.com/2011/04/01/defamation-update-part-3-%E2%80%93-heather-rogers-qc/ […]

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