Media law

Pride and privilege


George Galloway MP v Telegraph Group Ltd [2004] EWHC 2786 (QB), Mr Justice Eady, 2 December 2004



Mr Justice Eady's decision to award £150,000 libel damages to George Galloway MP, and to strike out the newspaper's defence of privilege, has caused as much alarm in some media arenas as that caused by the broadcast in 1938 of the Orson Welles radio show 'War of the Worlds', with cries that the end of the world is nigh reverberating around newsrooms.



That may be overstating it somewhat. But while some consider that the judgment is a characteristically thorough analysis of the law and a straightforward application of the Reynolds defence, some commentators have expressed fears that the judge's application of the qualified privilege defence - developed in Reynolds v Times Newspapers Ltd [1999] ICHRL 148, and welcomed with open arms in media circles at its birth as making our 'Draconian' UK libel laws much fairer - was too severe, inconsistent with the current European jurisprudence, and that the damages award was too high.



In early 2003, The Daily Telegraph published a series of articles that set out in full various documents which had been found by a Telegraph journalist in the badly damaged offices of the Iraqi Foreign Ministry after the fall of Baghdad. The newspaper added editorial comment. The claimant, a Labour party member and a strenuous anti-war campaigner, argued that the documents were fake and issued proceedings for libel. In finding in favour of the claimant, the judge held that the articles meant that:

Galloway had been in the pay of Saddam Hussein, secretly receiving sums in the region of £375,000 a year;

He had diverted monies from the oil-for-food programme, depriving Iraqi people, whose interests he claimed to represent, of food and medicine;

He probably used the Mariam Appeal - named after an Iraqi girl whom he had taken to a Scottish hospital for cancer treatment - as a front for personal enrichment; and

What he had done was tantamount to treason.

There were disputes as to meaning, but suffice to say that the defendant newspaper did not seek to justify what in essence were serious allegations. Instead, it claimed that it was entitled to rely on Reynolds privilege (it also ran a defence of fair comment in respect of the editorials). In essence, the defence is concerned with protecting responsible journalism where a publisher is under a duty to convey particular information, in the way that it is conveyed, to the world. As summarised by Mr Justice Eady, the defence claimed that the public interest was such that 'the public had a right to know the content of the documents... even if it was defamatory of the claimant and irrespective of whether the factual content was true or not'.



The defence also argued that recent European jurisprudence impacted in its favour on the right of the press to free speech. Referring to the recent European Court of Human Rights (ECHR) judgment in Selisto v Finland, ECHR (Application No 56767/000), the newspaper sought to persuade the court that its reports amounted to no more than reportage. This was described by Lord Justice Simon Brown in Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [2002] EMLR 13, as 'a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper', where any dispute between parties should be reported 'fully, fairly and disinterestedly'.



Reportage entitles the publisher to depart from the repetition rule and to report alleged facts said by others or within documents without having to prove them, provided that the publisher does not go beyond the allegations, embellish them, add allegations of his own and/or draw inferences from them.



In Selisto, the defendant had been fined for publishing defamatory allegations about an unnamed surgeon who had been cleared of implication in the death of a patient, where its articles had included quotes from pre-trial statements provided to the prosecution. The ECHR found that the fines imposed on the defendant under Finnish defamation law had breached its article 10 rights and that 'in the court's opinion, no general duty to verify... statements contained in such documents can be imposed on reporters and other members of the media, who must be free to report on events based on information gathered from official sources. If this were not the case, the efficacy of article 10 of the convention would to a large degree be lost'. Not surprisingly, The Daily Telegraph argued that this ruling assisted it in its defence, and that any finding against it would be unsustainable in the European court.



But Mr Justice Eady did not agree. First, he did not consider that The Daily Telegraph reports were reportage. Hardly reporting them in a neutral way, he found that 'they did not merely adopt the allegations. They embraced them with relish and fervour. They then went on to embellish them...'



He did not consider that the documents on which the defendant relied were of a sufficient status, unlike in Selisto, to justify reliance on them and unverified publication. 'It is perhaps ironic,' he said, 'that The Daily Telegraph should pray in aid the documents' status at the same time as decrying Saddam's intelligence service as being one of the most sinister and feared organisations in the world.'



While he confirmed that he would have regard to European decisions, the judge found that he would have to take the current UK law as convention-compliant and he did not take the view that it was necessary 'for individual judges in every case that comes along to apply and interpret the convention afresh'.



The judge continued: 'I can do no better than apply the principles in Reynolds to the (very special) facts of the present case.' Accordingly, he went on to consider in turn each of the ten of Lord Nicholls' criteria. For example, he did not ignore the urgency for a newspaper to maintain its 'scoop' and accepted that news can be a 'perishable commodity'. But he did not consider that this justified a speedy publication without verification, as the story in this case 'would be of interest at any time'. And as regards to the tone of the articles, he found it 'dramatic and condemnatory'.



Having applied the ten-point test to the facts, he applied the classic common law test of 'whether in all the circumstances "the duty-interest test of the right to know test" has been satisfied so that qualified privilege attaches', as per the Master of the Rolls Lord Phillips in Loutchansky. Was The Daily Telegraph under a social or moral duty to communicate what it chose to publish about and concerning the Iraqi documents?



He found that the reporting had not been neutral; there was no duty to publish the information in the way that the newspaper had done; The Telegraph had not met the requisite standard of responsible journalism and, accordingly, the Reynolds privilege defence had not been made out.



Whether one agrees with the judgment or considers that the various tests have been too harshly applied, the short lesson is that five years on from Reynolds, those publishing in the UK must still remind themselves daily of the principles of responsible journalism against which they will be measured in the UK courts.


By Amber Melville-Brown, David Price Solicitors & Advocates, London