Publish, and you can still be damned

Five UK law lords this week ruled unanimously that the media should be better able to claim a ‘public interest’ defence when sued for libel. The judgement by Britain’s highest court has been hailed as an historic victory for free speech and investigative journalism. But it still leaves the final say on freedom of the press in the hands of judges interpreting a bad law.

The House of Lords judgement overturned previous rulings against a newspaper that had libelled a Saudi businessman. An article published in the Journal Europeand the Wall Street Journal in February 2002 claimed that Saudi Arabia was monitoring bank accounts of prominent Saudi businesses and individuals, at the request of the United States, to trace whether they were being used, wittingly or otherwise, to siphon money to terrorist groups.

One of the businesses named and its president sued the newspaper. In 2003 the High Court ruled in their favour and ordered the paper to pay £40,000 in damages. The Court of Appeal later upheld the High Court judgment.

But according to the law lords this week, the rulings of the lower courts rested on too rigid an interpretation of the so-called Reynolds defence – and thereby ‘subverted its liberalising intention’.

The Reynolds defence was established when the former Irish taoiseach (prime minister) Albert Reynolds sued the Sunday Times in the late 1990s. When the case reached the House of Lords in 2001, the law lords ruled that newspapers that have made defamatory statements – even if they cannot subsequently prove the truth of them – should be protected from prosecution, if the information published is sufficiently important that the interest in publishing it outweighs concerns about safeguarding a person’s reputation.

‘The press discharges vital functions as a bloodhound as well as a watchdog’, the Lords ruled on the Reynolds case. ‘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.’

The ruling was seen by many as a victory for press freedom, believing that English law was finally moving towards incorporating a ‘public interest’ defence. But, as was argued on spiked at the time, it was only a very small step in that direction. The UK still had a long way to go to catch up with the law as it exists in most other Western countries.

Most disconcertingly, the Lords suggested that before allowing any sort of public interest defence, the courts should take into account at least 10 factors to determine whether journalists and editors acted ‘responsibly’ in publishing. These included: the seriousness of the allegation; the nature of the information, and the extent to which the subject matter is a matter of public concern; the source of the information; the steps taken to verify the information; the urgency of the matter; whether comment was sought from the claimant or whether the article contained the gist of the claimant’s side of the story; and the tone of the article.

In short, the price of broadening ‘qualified privilege’ was to submit editorial judgements to closer judicial scrutiny. When it is left to judges to make decisions about the ‘social and moral duty’ of the media, and to balance the interests of freedom of speech against the protection of reputation, then democratic debate is, as I argued at the time, likely to suffer. This has been borne out by subsequent events: newspapers that have relied on the Reynolds defence have almost always lost. As the law lords conceded this week, libel judges have imposed impossible standards on journalists. They have thrown out case after case as a result of rigidly applying the rules of the Reynolds defence.

The latest ruling in the House of Lords may well be a step in the right direction. The law lords have argued that Lord Nicholls’ 10 factors for consideration should be applied more flexibly, and interpreted as ‘pointers’ rather than as ‘a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege’. Lord Hoffmann said that the ‘fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence’.

The Journal article was, according to the Law Lords, ‘unsensational in tone and (apparently) factual in content’ and should be protected by the Reynolds defence. Lord Bingham said: ‘It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect.’

So the law lords’ judgement may make it easier for ‘responsible’, ‘unsensational’ and ‘neutral’ papers to plead a form of ‘public interest’ defence and, as such, may well be a step in the right direction. But it still leaves judges to make decision about whether media outlets can be protected by a form of public interest defence, based on how the bench perceives the ‘tone’ of the articles. I cannot imagine that this bodes particularly well for the tabloids, or for any media report that is not deemed ‘responsible’ in the eyes of m’lud.

Read the full text of the ruling.

spiked-issue: Free speech