In a recent landmark ruling, the British High Court has adjudicated in favour of a former Bank of Scotland director after he sued Associated Newspapers for libel. In his judgment, which concerned two articles published in the Mail on Sunday in May and June 2011, Mr Justice Tugendhat ruled that the newspaper printed defamatory allegations against the prominent Asian businessman Infran Qadir without stating that they were entirely disputed by him, and falsely claiming that he declined to comment on those allegations. Since the stories were based predominantly on court documents, the newspaper group asserted its right to statutory and common law qualified privilege, a defence rejected by the Judge on the grounds that there was no public interest in articles which were ‘unbalanced’, contained ‘misinformation’, and were ‘not the product of responsible journalism’.
In a statement, Associated Newspapers criticized the ruling, saying they would seek leave to appeal. ‘This has disturbing implications for journalists reporting legal actions on the basis of court documents’, the company stated. ‘It introduces onerous new conditions a journalist must meet before being covered by legal privilege. It also demands that individual newspaper journalists must, in certain circumstances, amend online versions of articles over which they have no control. We believe the judgment is both wrong and damaging to the reporting of legal proceedings.’
Is this case yet another example of Britain’s famously draconian libel laws undermining that which ought to be ‘privileged’, or simply a malicious journalist who went too far? ‘Malicious’ is the key word here: for it is the finding of malice, and thus a finding that the article is demonstrably not in the public interest, which disqualifies the defence of privilege and subsequently opens the way for a charge of defamation.
The law, however, has proved difficult for the courts to specifically define, and has thus evolved in recent years. Significant in its development was the 1999 House of Lords ruling Reynolds v Times Newspapers Ltd, when Lord Nicholls, speaking for the majority, upheld Lord Bingham’s judgment from the Court of Appeal, and in doing so gave an additional ten ‘illustrative circumstances’ which required consideration in questions of qualified privilege. It appears that these stringent criteria formed the basis of the Judge’s ruling in this case, since his judgment focused explicitly on the fair and accurate (or otherwise) nature of the report, while giving little import to the laws of privilege which otherwise grant the media large-scale, even blanket, protection in its reporting of civil litigation. Numbers 3, 4, 8 & 9, for instance, seem apposite in this case:
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
8. Whether the book/article contained the gist of the claimant's side of the story.
9. The tone of the book/article. A report can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
On examination of these conditions, what appears at the outset to be a curtailment of press freedom might rather be a determined resolution to adhere to the context of each individual case. Lord Nicholls’ own judgment refers to the ‘balancing operation’ required by the Judge in each instance: here, Mr Justice Tugendhat fires a shot across the bows, referencing in his judgment the ‘particular mischief in this institutional failing in the case of the press’ whilst noting acerbically that ‘the press may get away with refusing to admit they have done wrong, when others would not get away with it.’ When even the Society of Editors – ‘fighting for media freedom’ – leads its online report with the seemingly unarguable contention that ‘newspapers must be as willing to correct their own errors and failings, and highlight those of other media organizations and colleagues, as they are to criticise those of others’, it is difficult to demur. News organisations must have freedom to report on court documents but they must do soon ethically and as accurately as they can.