London's new landmark libel law
By Mark Stephens Posted Jan 1 2007
Few cases involving the news media can claim landmark-judgments status. An Oct. 11 ruling by the British House of Lords redefining the so-called Reynolds defense of “qualified privilege” for journalists became one of them.
The ruling established that serious news publishers and organizations can conduct professional investigative journalism knowing that they have a viable defense if:
• they are writing about something of public interest;
• the allegations are relevant and appropriate in the context of the article; (In this author’s view it made a lot of difference that the original article was measured and temperate. The Lords made considerable reference to the “non sensational” tone of the article.) and
• they have taken the sort of steps that responsible journalists normally take.
The Reynolds defense stems from a 2001 ruling on a suit brought by former Irish Taoiseach, (prime minister) Albert Reynolds over a story in the Sunday Times alleging he had mislead the Dail (Irish parliament). In the case, the House of Lords ruled the media could publish information that was later found to be untrue or defamatory provided it was the product of responsible journalism and the public had a right to know.
The House of Lords then set out a list of 10 points, that were relevant in establishing qualified privilege depending on the circumstances of the case. In the intervening years, the lower courts have applied Reynolds as if it contained a rigid series of 10 specific hurdles. If the respondent fell at any of these hurdles, the defense went down. This served to render Reynolds a very difficult (and risky) defense to run.
The recent judgment in the case of Jameel and others v. Wall Street Journal Europe sets a far more pragmatic standard and much fairer guidelines as to how the defense should be applied. For serious news organizations it fundamentally changes the risks involved in investigative journalism. Lord Hoffmann, who delivered the judgement, remarked “.. until very recently the law of defamation was weighted in favor of claimants and the law of privacy weighted against them.”
The case resulted from an article published Feb. 6, 2002. In the wake of the September 11 attacks, the article claimed that the Saudi Arabian Monetary Authority was monitoring, at the request of the U.S. Treasury, the accounts of certain Saudi companies in order to establish whether any funds were ending up, wittingly or unwittingly, in the hands of terrorist organizations.
The article, written by James Dorsey, the WSJ’s special correspondent in Riyadh, and checked by Glen Simpson, a WSJ journalist based in Washington with contacts in the U.S. Treasury, was run on the front page. WSJ’s U.K. circulation is approximately 18,000 copies a day.
Billionaire Saudi car dealer, Mohammed Jameel, whose family owns Hartwell Motors in Oxford, sued the WSJ because his name was mentioned in the article to show that the Saudis were co-operating with the U.S. war on terror by agreeing to monitor the bank accounts of some of their most powerful and wealthy citizens.
The newspaper could not undeniably prove the truth of its story because its sources in Riyadh were afraid of reprisals from Saudi authorities if they testified, although their information had been confirmed in Washington through a confidential source within the U.S. Treasury who also could not be identified.
During the original trial, the judge, Eady J, ruled that publication of the story was not in the public interest, (one of the 10 hurdles), because it breached an agreement between the U.S. and Saudi governments to keep the monitoring secret. He also applied a long-standing English legal rule that defamation could only be defended if there was an urgent moral duty to publish it.
The jury found that the article was defamatory against Jameel and his main trading company and awarded damages in the sum of £30,000 ($59,000 USD) to Jameel and £10,000 (about $20,000 USD) to the company.
The WSJ did not attempt to prove the truth of the article. Instead, its defense was based on Reynolds, which does not take into account whether the article is defamatory. Eady J. rejected the WSJ’s Reynolds defense. The Court of Appeal also rejected it on appeal. The WSJ appealed again, and the House of Lords ruled the Reynolds defense did, in fact, apply to the WSJ.
The dogmatic application of the 10 hurdles is gone. In their place are three main tests for a Reynolds defense to apply.
The first test involves the public interest of the material, with “public interest” to be interpreted in a common sensical way.
The second test is the inclusion of defamatory material. The test is defined by whether it is justifiable to include the defamatory statement. The trial judge declared that there was no public interest in being misinformed. The Lords disagreed with this essentially circular argument, confirming that the purpose of the Reynolds defense is to protect defamatory allegations.
Lord Hoffmann’s analysis of this part of the test is worth setting out in full:
“The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article. But whereas the question of whether the story as a whole was a matter of public interest must be decided by a judge without regard to what the editor’s view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. On that question allowance must be made for editorial judgement. The fact that the judge, with the advantage of leisure and hindsight might have made a different editorial decision should not destroy the defense.”
The final part of the Reynolds defense is a two-pronged test, dealing with responsible journalism. It is evident that this test should be applied in a contextual manner in light of the prevailing circumstances.
The first prong asks what steps were taken to verify the story. It is relevant to most cases that the journalists honestly and reasonably believe that the statements are true, although importantly there will also be instances where the fact that the statement was made is of itself important irrespective of whether the publisher believes it to be true.
The Lords also considered the fact that confirmations from the U.S. Treasury and from the U.S. Government in general were not going to fall into the “Yes, you’ve got that absolutely right and you can quote us on that” variety, and there was an elaborate code which was followed between journalists and branches of the U.S. government. The Lords were satisfied that the appropriate steps were taken.
The second prong asks what opportunity was given to the other party to comment. Jameel was given an opportunity to comment at 5 p.m. (Saudi time) on the day before publication (Feb. 5, 2002). Jameel’s secretary — Jameel himself was asleep in Tokyo at the time — called back to ask whether the publication could be postponed; It wasn’t.
Eady J. and the Court of Appeal considered the time frame given to Jameel to comment too short and this, taken in conjunction with the decision not to postpone, was in their view fatal to the Reynolds defense. The Lords did not see it this way and took particular account of the fact that even if Jameel had commented, it would have made no difference to the story. There was no allegation or inference in the original article that Jameel knew what was going on.
The other component of the case, which went against the WSJ, was the presumption of special damage. Most torts require damage to be established — malicious falsehood for example — but the tort of defamation does not. This origin of this presumption is that an individual is entitled to vindicate his reputation without having to establish financial loss.
The Lords held that the prevailing presumption in defamation about special damage should remain, irrespective of whether the claimant is an individual or a commercial organization. Lords Hoffmann and Hale would have held that a corporation should have to prove special damage – as its reputation is no more than a commercial asset, goodwill – for the purposes of being able to sue for libel. However, Lords Bingham, Scott and Craig disagreed and left this particular bit of law intact.
This major case makes it easier for journalists to defend themselves against libel charges and has particular relevance in areas where it is difficult or even impossible to prove the truth or falsity of the allegations.
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Jonathan Sellors, Pia Sarma and Gina Latner contributed to this story.