Condemnation of the BBC over the Newsnight report linking child abuse allegations to a former senior Tory politician has been savage and universal. Journalists, pundits and politicians confess themselves shocked and horrified that programme could fall so far below the standards of professional journalism expected at the BBC. The BBC, which had not actually named Lord McAlpine, promptly published an apology and full retraction, but McAlpine may still sue for libel.
However, at the same time as journalists express their incredulity at such a disastrous failure of standards at the BBC, they and the Libel Reform Campaign are pushing hard for a change in the Defamation Bill before parliament that would allow all media organisations to do exactly what the BBC did and be completely immune from liability in defamation. The kind of conduct that is thought to amount to a scandal at the BBC, requiring senior heads to roll, is thus proposed as the new legal standard.
At present, the common law gives media bodies – and bloggers and others – a defence if they have libelled someone, provided they can show that the relevant article concerned a matter of public interest and was responsibly published. In other words the publisher has to show that they took reasonable care in researching and verifying the allegation before making it. This generally includes contacting the subject of the allegation for comment before publishing and including a summary of their side of the story in the article or broadcast (something that Newsnight of course failed to do). It’s called the Reynolds defence and clause 4 of the Defamation Bill enshrines it in statute. However, the Libel Reform Campaign, supported by nearly all the print media wants to introduce into the Bill what they call a “proper” public interest defence, something now also supported by the Labour Party. Another version of the public interest defence has recently been put forward by Lord Lester and Sir Brian Neill. This gives rise to other considerations which I will not discuss here.
The Libel Reform Campaign version of the new defence would allow for complete immunity from liability in defamation provided three conditions are met: the allegations concern a matter of public interest; they are honestly believed to be true; they are “promptly clarified or corrected with adequate prominence”. In theory you could defeat the defence by showing malice – reckless disregard for the truth of the allegation – but in practice this is extremely hard to prove.
What is rather darkly ironic, in light of all the criticism the BBC has suffered, is that its broadcast would meet all three of these conditions: first, the issue of child abuse, was undoubtedly one of public importance; second, the BBC evidently believed what they broadcast to be true at the time (and did not have reckless disregard for the truth); third, they promptly apologised and withdrew the allegations, once the mistake was pointed out. So under these proposals, the BBC would be completely in the clear as regards liability for defamation.
Thus precisely what the BBC has been so savagely criticised for – failing to carry out the basic checks required by the standard of responsible journalism before publishing seriously defamatory allegations – would become ok in law.
Of course, the law and professional standards don’t always say the same thing: one can criticise an organisation for falling below certain ethical standards even where it hasn’t incurred legal liability. And we might hope that even if the Libel Reform Campaign gets its way and the requirement of responsible journalism is removed from those prepared to apologise and withdraw their libellous ‘public interest’ allegations, most journalists will continue to practice ethical and responsible journalism anyway. But is it a good idea to make a legal change that seems almost to encourage irresponsible and careless journalism? To remove from the British media a requirement that, before defaming people, they should check their facts?
Surely, in balancing our right to reputation against the right to freedom of expression, it makes sense to draw the line in a way that simply requires journalists to adhere to those standards that are part of their professional ethics anyway. We might not expect the same standards of bloggers, small NGOs and “citizen journalists” and clause 4 of the Bill should signal to the courts the importance of applying the notion of responsible public interest publication flexibly.
It’s a good idea for libel law to encourage swift and prominent retractions and corrections, rather than slow and hugely expensive libel actions. But to give full legal protection to media organisations that do what the BBC did cannot be right. At the very least, any such new defence should contain an exception, allowing judges to give permission for a case to proceed, despite a retraction, where the claimant has suffered identifiable damage from the allegations. This could include anything from not getting a job applied for just after the allegations were published to the emotional trauma or depression caused by having one’s spouse walk out, or children bullied at school.
Libel law does need reform – and the Bill makes some welcome changes – but the BBC scandal has shown us that the proposals of the Libel Reform Campaign and a self-serving media simply go too far.
Gavin Phillipson, is a Professor of Law at the University of Durham. He was the academic member of the Ministry of Justice Working Group on Libel Reform.
This article originally appeared on the Guardian Law site and is reproduced with permission and thanks