The key thing to remember as a starting journalist is that the material we are working with must always be produced in the public interest and be the product of ‘reasonable journalism’.
“Every adult has a reputation in eyes of people who know him/her or – if famous or holding a public office – general public. “Part of a person’s reputation will be objective facts (positive or negative) about him/her (such us academic qualifications or criminal convictions, his religion, marital status, etc. These facts will go together with more subjective opinions that people who have met the person will have.” (Ref.1) And some people certainly believe that their reputation is very precious and in some cases worth a lots of money.” (Ref.1) more in post titled “Defamation – the insides - here”
“Law exists to protect the moral and professional reputation of the individual from unjustified attack. That is, a civil wrong for which monetary damages may be awarded by a court. Defamatory statements are those published or spoken which affect the reputation of a person, company, or organisation. Broadly speaking, if a defamatory statement is written or is in any other permanent form, the tort is libel, for which damages can be awarded, unless the statement is protected by a defence in libel law (...) “ (Ref.2)
A defamatory statement appears when,” judges tell juries that a statement is about a person is defamatory if it tends to do any of the following:
- expose the person to hatred, ridicule, or contempt,
- causes the person to be shunned or avoided,
- lower the person in the estimation of right-thinking members of society generally, or
- disparage the person in his/her business, trade, office, or profession.” (Ref.2)
Libel will have been committed if a publication is defamatory, a person has been identified and defamed. What is crucial is that the person suing does not have to show that words actually did expose him/her to hatred or any of above mentioned, as sources like 20th edition of McNae’s essential law for journalists, say that” these definitions date back to libel cases in the Victorian era and the early twentieth century. “Also a claimant has to show the court only three things when suing for libel, that “the publication is defamatory; it may be reasonably understood to refer to him/her, i.e. ‘identification’; it has been published to a third person.
Reynolds v Times Newspapers Ltd
This case is a United Kingdom legal case in the House of Lords concerning qualified privilege for publication of defamatory statements in the public interest. It provided the Reynolds defence, “which can be raised where it is clear that the journalist had a duty to publish an allegation even if it turns out be wrong. In adjudicating on an attempted Reynolds defence a court will investigate the conduct of the journalist and the content of the publication. (Ref.10)
Albert Reynolds had been the Taoiseach (Prime Minister) of Ireland, until a political crisis in 1994. The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament. Mr Reynolds objected to a 1994 article claiming he had misled parliament entitled "Goodbye Gombeen Man" - a reference to an Irish phrase used to describe a wheeler dealer.” (Ref.3) “This article was then published in mainland UK. However, the UK version omitted an explanation that Reynolds had given for the events, which had been printed in the original article. Reynolds brought an action for defamation. The defences of justification and fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd appealed that the defence of qualified privilege be considered; the Court of Appeal denied this. The appeal to the House of Lords was therefore on the matter of whether the defence qualified privilege be extended to cover the mass media.” (Ref.3)
“The newspaper claimed a defence of qualified privilege with regard to these assertions on foot of their supposed benefit to the public, but a High Court jury found in favour Reynolds in 1996. However, the jury recommended that no compensation at all be paid to the former Taoiseach. The judge subsequently awarded punitive damages of only one penny in this action, leaving Reynolds with massive legal costs, estimated at £1 million. (Ref.4)
The ten criteria of Reynolds defence:
“Lord Nicholls, speaking for the majority, upheld Lord Bingham's judgement, adding to it a list of ten criteria against which attempts to use the Reynolds defence should be judged:
The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
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.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up. (ref.10)
Generally speaking the Reynolds defence protects publication of material if it can be shown to be a matter of public interest and responsibly reported and Lord Nicholls set down a list of pointers like I showed above, indicating what the courts would look at to decide if the defence could be claimed. As McNae’s states in major points about The Reynolds defence, “the courts often place emphasis on seeking comment from the person or organisation that is the subject of the story in order to claim this defence. Courts will also examine whether the defendant can claim to have been engaged in ‘responsible journalism’ and ‘neutral reportage’.” (Ref.2)
An article written for MediaGuardian, on February 2005 titled: 'Reynolds defence' in new libel law test describes the stage that the case was at in 2005.
“The so-called ‘Reynolds defence’ used in recent cases, including the Telegraph versus George Galloway, will be tested again today in a judgment to be handed down to the Wall Street Journal. The business paper will today hear if it has been successful in an appeal against a case it lost last year against a wealthy Saudi Arabian businessman. If the Wall Street Journal wins its appeal it will be a landmark ruling establishing the so-called Reynolds defence of public interest. In January last year the Wall Street Journal failed in its defence in a case brought by businessman Mohammed Abdul Latif Jameel over untrue allegations that his bank accounts had been monitored by anti-terrorist officials. The American paper claimed Mr Jameel's company was one of a number of organisations being monitored at the request of law enforcement agencies, to prevent funds being channelled to terrorist organisations, a claim that turned out to be untrue. In court the newspaper did not claim that what it had published was true, but argued its case that the information was in the public interest. Its case relied on unidentified sources but Mr Jameel's lawyers managed to rebut the information the sources had given. Although Mr Justice Eady said he recognised the genuine public interest in investigating allegations of terrorist funding, he found that the journalism failed to meet the high standards required to establish a duty to publish. It was one of a line of examples where the Reynolds defence has proved very difficult to establish when it relying on unidentified sources. (...)
After a complicated 24-day trial Mr Reynolds won a symbolic one penny in compensation but the important point was the case's place in the development of British libel law. Three years later the House of Lords decided to allow the media to plead the Reynolds defence - which meant newspapers could print untrue and defamatory information if they could prove it was in the public interest to publish it and that it was the product of responsible journalism. The Lords listed 10 points that the courts must consider if a paper pleads qualified privilege. One of the points is that the story must "contain the gist" of the claimant's story and as the Sunday Times failed to ask Mr Reynolds for his side of the story it didn't change the case's outcome. The Daily Telegraph claimed qualified privilege in the libel case brought against it by George Galloway over allegations, based on disputed Iraqi documents found after the end of the Iraq war, that rebel Labour MP was in the pay of Saddam Hussein. Mr Galloway won a resounding libel victory, with a damages award of £150,000 after Mr Justice Eady described the Telegraph's allegations, as "dramatic and condemnatory". The paper had made "a rush to judgment" in "a classic case of publishing and being damned" and had not given Mr Galloway "fair or reasonable" opportunity to comment on allegations. The paper was landed with a £1.2m legal bill.” (Ref.3)
The ruling affirmed in 2006 by the House of Lords in Jameel v Wall Street Journal Europe, where Lord Hoffmann, giving the lead judgment, stated that Lord Nicholls' criteria were not to be seen as obstacles or hurdles that any journalist had to overcome in order to avail him or herself of the privilege.” (Ref.10)
At the stage when Albert Reynolds' libel case was in 1999 the battle with the Sunday Times was moved to the House of Lords ( Brian O'Connell, London Editor, reported from the House of Lords, article from 21 June 1999) The newspaper was asking five law lords to extend the legal defence of qualified privilege. The case arose from Mr. Reynolds' successful appeal for a retrial of his 1996 libel action against the paper. (Ref.7) “The paper libelled the former Taoiseach when it said that he had lied to the Dáil in relation to the Father Brendan Smyth affair which eventually brought down his Fianna Fail-Labour coalition in 1994. Mr. Reynolds won the original six-week action but was awarded only one penny in damages. His legal bill is estimated at around a £1 million, but he has received permission for a retrial of the action. However, the Sunday Times has asked the Law Lords to extend the legal defence of qualified privilege. The House of Lords ruling - which could break new ground in defining the limits of press freedom - will have a crucial bearing on the outcome of any retrial. If Mr. Reynolds were to go back to court and lose, his legal bill could run into millions.” (Ref.7)
Further on, the same article gives that “the former Taoiseach is one of three defendants being sued by a construction company for £650,000 sterling over a joint venture agreement relating to proposed construction projects the High court was told today. No date has been set for the hearing of the full action against the three defendants.” (Ref.7)
Eventually, the decision in Reynolds v. Times Newspapers Limited in 2001 has” hailed a victory for freedom of speech and investigative journalism, however until 2006, when this comment is from, had not provided a clear public interest protection from claims in libel.” (Ref.6a)
Jameel v Wall Street Journal Europe
A great example when the ten point Reynolds test was exercised was during Jameel v Wall Street Journal Europe case where it became another significant case for journalists in a House of Lords judgment on English defamation law. The judgment was an affirmation of Reynolds v Times Newspapers Ltd and effectively upholds a public interest defense in libel cases. (Ref.6)
Michael Simpkins LLP Solicitors website gives more details on this case in the bulletin part dated back to 16th October 2006 starting of a very significant title “Jameel – a victory for responsible journalism”. On 11 October 2006 the House of Lords, in a landmark ruling, unanimously overturned the decision of the High Court and Court of Appeal and allowed the defence of the Wall Street Journal Europe; effectively upholding the public interest defence in libel actions. The decision represents an affirmation of the House of Lords’ decision in Reynolds v. Times Newspapers Limited in 2001 which was hailed as a victory for freedom of speech and investigative journalism, however until now had not provided a clear public interest protection from claims in libel. The offending article was published in the Wall Street Journal Europe and claimed that the Saudi Arabian authorities were monitoring bank accounts of prominent Saudis for evidence of supporting terrorism, knowingly or not, at the behest of the US Government. The article included the Abdul Latif Jameel Group as being on the list of monitored accounts. The main company in that group, and its president Mohammed Jameel, sued for libel. The lower courts had allowed Jameel’s claim to succeed, taking a narrow interpretation of the Reynolds privilege defence. But the Lords held that the Nicholls list in the Reynolds case, of 10 matters which journalists could consider in deciding whether the reporting was responsible, was not a hurdle to establishing the defence, but rather guidance as to what matters would be considered in deciding whether a journalist had acted reasonably. The Lords stressed that a “flexible and practical” approach should be taken in assessing whether the Reynolds privilege is made out in any case. This decision greatly enhances the position for responsible investigative journalism on matters of public importance. The Lords also held that corporate claimants do not have to prove financial loss to maintain a libel claim; a restatement of the present position. “(by Catherine Fehler) (Ref.6a)
The Oryx Company VS BBC
Few years earlier in November 2002 in The Oryx Company VS BBC case, “The BBC settled a long-running libel action with Oryx over a report falsely linking the mining firm with the al-Qa'ida network in the wake of the 11 September attacks. A special report on the BBC's Ten O'Clock News on 31 October 2001 entitled "The diamonds that pay for Bin Laden's terror" stated that Mohammed Khalfan, a convicted terrorist jailed for the 1998 bombing of a US embassy in Africa, was a major shareholder in the company. The allegations, which were false and arose because of a legitimate shareholder with a similar name, were not put to the company before the broadcast. Oryx lost orders, and credit facilities were withdrawn after the story was picked up by news networks in other countries. After the BBC realized that "a serious editorial mistake" had occurred, the corporation broadcast a full apology three weeks later. Geoffrey White, the deputy managing director of Oryx, said: ‘I am satisfied with the result of this libel case. I am still baffled, however, as to how the BBC error could have happened in the first place. The special report caused considerable damage to our company and reputation, and we are pleased that this case is over.’ "(Ref.5)
In the document AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, as passed by Seanad E´ ireann, in section entitled AN ACT TO REVISE IN PART THE LAW OF DEFAMATION; TO REPEAL THE DEFAMATION ACT 1961; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH ‘(Ref.8) it is stated in part 1 that this Act may be cited as the Defamation Act 2008” The document also gives definitions on legal terms on “defamation action” — an action for damages for defamation, or an application for a declaratory order, whether or not a claim for other relief under this Act is made; “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly. “Periodical” means any newspaper, magazine, journal or other publication that is printed, published or issued, or that circulates, in the State at regular or substantially regular intervals and includes any version thereof published on the Internet or by other electronic means. “Plaintiff” includes a defendant counterclaiming in respect of a statement that is alleged to be defamatory and a “summary relief” means, in relation to a defamation action— a correction order, or an order prohibiting further publication of the statement to which the action relates. (Ref.8)
PART 2 of the document focuses on the “tort of defamation”. The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person, and “defamation” shall be construed accordingly. There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where it was not intended that the statement would be published to the second-mentioned person, and it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person. (Ref.8)
Qualified privilege and Loss of defence of qualified privilege section of the document:
the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all the circumstances. In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant did not believe the statement to be true; the defendant acted in bad faith or out of spite, ill will or improper motive; the statement bore no relation to the purpose of the defence, or the manner and extent of publication of the statement exceeded what was reasonably sufficient in all the circumstances. The defence of qualified privilege shall not fail by reason only of the publication of them statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person. (Ref.8)
Further on in the document there are also very interesting details about distinguishing between allegations of fact and opinion & offer to make amends. At the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue. Where a defamatory statement consisting of an opinion is published jointly by a person (“first-mentioned person”) and another person (“joint publisher”), the first-mentioned person shall not fail in pleading the defence of honest opinion in a subsequent defamation action brought in respect of that statement by reason only of that opinion not being honestly held by the joint publisher, unless the first-mentioned person was at the time of publication vicariously liable for the acts or omissions, from which the cause of action in respect of that statement accrued, of the joint publisher. (ref.8)
“Defamation reform: are we there yet?"
The article from December 10, 2006 titled “Defamation reform: are we there yet? “Describes the changes that have been happening within the area of rules of defamation. The Defamation Bill launched by the Tanaiste in the Seanad last week embraces reform recommendations made in 1991:
‘If passed, it will create a radically new defamation code, but only time will tell whether the delicate calibration of the competing interests of free speech and protection of reputation has been successful. There is a measure of agreement already, however, that the bill addresses many unsatisfactory aspects of current practice and procedure. The first is the uncertain legal status of last month’s jury award of €750,000 to Denis O’Brien. The Mirror newspaper had reported the contents of an anonymous claim to the Flood Tribunal that O’Brien had bribed a minister. The newspaper’s argument about the meaning of the report was unsuccessful and the jury was entitled to take a grave view of the allegations. What the jury did not know, however, was that the Supreme Court had already ruled that an earlier award of »250,000 (€317,400) was too high. The Supreme Court set aside the £250,000 verdict six years ago, but declined to substitute its own award. No one was allowed to tell this to the jury. The only guidance which the trial judge was allowed to give was to urge the jury to be fair and ensure that any award corresponded to the injury suffered. The result was a much higher award, and uncertainty as to whether this award can stand. It seem that a second appeal to the Supreme Court is inevitable. The spectacle of a libel plaintiff and defendant being forced to endure an endless cycle of trial, appeal and retrial might well lead bewildered citizens to conclude, like Mr Bumble, that ‘‘the law is a ass, a idiot’’. Or if that citizen is a libel plaintiff, to say, like Miss Flite in Bleak House: ‘‘I expect a judgment. Shortly’’. ‘(Ref.9)
‘The Defamation Bill addresses the problem in two ways: first, juries must be given detailed guidance by the judge, and may be addressed by the lawyers on matters including the nature and gravity of the defamatory words, whether an apology was made, evidence about the plaintiff’s reputation and the partial success of any defence of truth or privilege.
Secondly, the Supreme Court is specifically empowered to make substitute awards when it strikes down a jury award. The bad news is that these new provisions will only apply to material published after the bill becomes law. It will have no retrospective effect. Until then, juries cannot be given more than very general guidance as to libel awards.
However, in a suitable case, the Supreme Court may decide to depart from long-standing practice and substitute its own award. It has already indicated that it has the power to do so. A more radical reform is the proposed increase of the jurisdiction of the Circuit Court in defamation to €50,000.The effect will be to push more cases into this court where jury trial is not available for civil actions. (...)
The state has acknowledged the importance of the role played by juries in defamation actions in recent submissions to the European Court, underlining ‘‘the cherished nature of the principle that lay persons were considered the most effective arbiters when deciding, not only what was defamatory, but the appropriate level of compensation.” Mr Justice Adrian Hardiman of the Supreme Court has said - speaking extra judicially - that ‘‘the verdict of a jury is felt to carry a degree of authoritative vindication difficult to replace in any other way’’. (...) The Defamation Bill provides that a publisher’s apology is not an admission of liability and is not relevant to the determination of liability. Broadcasters and the press have been agitating for this reform since 1991, following a recommendation of the Law Reform Commission that year. The commission had defined apology as ‘‘simply a matter of courtesy [which] draws the reader’s attention to the fact that [a] matter concerning the plaintiff is somehow in dispute ... it is quite distinct from a correction, retraction or any form of admission that the publisher was in error’’. By contrast, the concise Oxford dictionary defines apology as ‘‘the regretful acknowledgement of fault or failure’’. It seems a curious logic, to admit publicly that you are wrong, but maintain that you are not liable for the wrong. (...)
The bill restates, but more restrictively, a press privilege defence developed by the English House of Lords in 1999 in Albert Reynolds’ libel action against the Sunday Times - the newspaper lost on the issue of privilege - and introduced into Irish law in 2003. Additionally, the bill introduces a new dimension derived from US constitutional law as to the status of the plaintiff. In summary, the defence permits the press to publish material of public importance, even where it is untrue, provided the publication is ‘fair’ to the plaintiff in that it relates to his or her public functions and he or she is offered an opportunity to comment on the allegations before publication.’ (Ref.9)
Moreover, “ the journalist must believe the material to be true, must take appropriate steps to verify the information and must have complied with a new (as yet not drafted) code of journalistic conduct in preparation of the publication. The defence has not proved particularly helpful to the English press. A new summary relief procedure would allow a plaintiff to seek a High Court declaration that a publication is defamatory and a correction order, provided the publisher has no reasonable defence (but excluding the responsible journalist privilege defence, which makes it easier for the plaintiff, and is arguably unjust to the publisher). The plaintiff will forgo the right to financial compensation in return for a swift procedure which results in a public declaration in his favour. (...)” (Ref.9)
“Less controversial are reforms such as the abolition of the distinction between slander and libel; allowing High Court defamation defendants to pay money into court without admission of liability (as in other civil actions); restating in modern format the old common law defences of justification (truth), fair comment (honest opinion) and limited circulation privilege, and reducing the litigation time bar to 12 months. (Pamela Cassidy, principal solicitor Cassidy Law Solicitors, Dublin) “ (Ref.9)
As journalists it is crucial to always try to recognise risk and research well who is the person we are writing about in aspect of legal past and record (could they sue, why have they sued before etc); is what we are writing about potentially defamatory and if so do I have a defense? And always remember if in any doubt about anything, lawyers never mind being asked.
As journalists we have no defence if our facts are not checked properly; not ‘referred up’ (I’m worried about it); when you have not even tried to put yourself in the shoes of a person or a company you are writing about or in a case when you have not bothered to wait for the lawyers’ opinion on the concern.
References:
Ref.1) Media Law Lecture (updates, year 3, BA Journalism 2010) week 3 & 4
Ref.2) McNae’s essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref. 3) http://www.guardian.co.uk/media/2005/feb/03/pressandpublishing.law
Ref. 4) http://en.wikipedia.org/wiki/Albert_Reynolds
Ref. 5) http://www.independent.co.uk/news/uk/crime/bbc-reaches-settlement-over-oryx-diamonds-libel-605075.html
Ref.6) http://en.wikipedia.org/wiki/Jameel_v_Wall_Street_Journal_Europe
Ref.6a) http://www.simkins.co.uk/ebulletins/cxfJameelResponsibleJournalism.aspx
Ref. 7) http://www.rte.ie/news/1999/0621/libel.html
Ref. 8) AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, As passed by Seanad E´ ireann http://www.oireachtas.ie/documents/bills28/bills/2006/4306/b43b06S.pdf
Ref. 9) http://archives.tcm.ie/businesspost/2006/12/10/story19467.asp
Ref.10) http://en.wikipedia.org/wiki/Reynolds_defence
Ref.11) House of Lords: Judgments -- Reynolds v. Times Newspapers Limited and Others http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01.htm
