Win one, lose one
George Galloway MP v The Telegraph Group Ltd [2006] EWCA Civ 17; Mersey Care NHS Trust v Robin Ackroyd [2006] EWCH 107 (QB)


The media is locked in a constant battle to fight against curtailment of its right to free speech, defending a steady stream of defamation and privacy actions. These cases evidence the truth of the theme of modern media litigation that neither this right nor the right of the individual to reputation and/or privacy is paramount. While journalist Robin Ackroyd won the latest round in the battle to protect his source, the Daily Telegraph lost its libel bout with George Galloway MP.




Galloway


Equally well known for his exploits on reality TV as for his status as an MP, George Galloway may not have left the 'Big Brother' house victorious, but had better luck at that big house on the Strand, emerging from the Royal Courts of Justice with his libel victory intact after an appeal by the Daily Telegraph.


More than simply upholding the £150,000 award, the judgment has reminded the media that if it is to rely on the defence of Reynolds qualified privilege - arguing it has a duty to impart information of public interest to a readership with a corresponding interest - it must stick to the rules of that defence. And, notwithstanding any more flexible approach by the European Court of Human Rights on the repetition of the defamatory allegations of others, this is no defence to an action for libel in the UK.


The Reynolds defence was hailed as a victory by the media when first established in the case against Times Newspapers in 1999, with Lord Nicholls setting out a 'non-exhaustive ten-point test' of responsible journalism (see [1999] Gazette, 17 November, 38). But since then, media defendants have foundered in convincing the courts that they have complied sufficiently with its guidelines.


The defence boils down to whether the defendant has acted responsibly. This judgment confirms that following the spirit of the ten-point test will help persuade the court that the defendant was doing so; repeating and embellishing the allegations of others, and failing properly to put them to the subject, will not.



Mr Galloway sued over articles repeating and reporting documents found in the offices of the Iraqi Foreign Ministry (see [2005] Gazette, 10 February, 31). He claimed they were fakes and took offence at the allegations, which he said included that he was in the pay of Saddam Hussain and had used a charitable appeal for his own personal enrichment.



The newspaper did not seek to justify these allegations but argued that the documents were strong prima facie evidence that he had arranged for the Iraqi government to fund his political campaign and/or the charitable appeal, and that it had a duty to report these matters to the public. Moreover, it was simply reporting the finding of the documents, which should be protected under the concept of reportage.


At first instance Mr Justice Eady found in summary that the articles bore the claimant's meanings; they had gone beyond repeating what was in the documents - which in the Strasbourg court would be more likely to be covered by the defence of reportage - but had embellished them and drawn their own inferences from them; and the newspaper had failed to comply with the spirit of Reynolds by, among other things, not verifying the information and by publishing without putting the allegations fully to Mr Galloway.


On appeal, the Telegraph argued that irrespective of whether the allegations were defamatory of Mr Galloway, it had a duty to report the finding of the documents and their content, to fill in background information and express its own conclusions. The Court of Appeal agreed, but only insofar as any allegations of fact could be justified or protected by privilege. As no justification had been pleaded, the availability of the defence of Reynolds privilege was key.


On considering whether the articles could properly be termed reportage, Mr Justice Eady had directed himself to carry out a 'fact-sensitive' balance between the right to free speech on the one hand, and the reputation of the individual on the other, and the Court of Appeal endorsed this approach. The court also had to have regard to the ten-point test and to Lord Nicholls's 'general exhortation' requiring that 'particular regard [be paid] to the importance of freedom of expression'.


Mr Justice Eady had found that the allegations in the articles were not limited to what was in the documents; thus they were not reportage and not protected by privilege. The Court of Appeal also condoned this finding - 'if the documents had been published without comment or further allegations of fact, Mr Galloway could have no complaint since, insofar as they contained statements or allegations of fact, it was in the public interest for the Daily Telegraph to publish them, at any rate after giving Mr Galloway a fair opportunity to respond to them'. In its opinion, such a publication would be reportage, and accordingly, 'the balance would come down in favour of freedom of expression'. But Mr Justice Eady had found that the Telegraph had 'gone a long way to adopt and embellish the allegations in the Baghdad documents'. The appeal court would not interfere unless the judge had erred in principle or reached a plainly wrong conclusion. He had not.


The current state of UK law is that repeating and adopting defamatory statements made by others - in this case adopting the allegations contained in the documents - is fatal to a defence of qualified privilege. The Court of Appeal has suggested that this might be treated with more flexibility over time - 'it does seem to us that the tenor of the European court decisions would support a more flexible approach'. But it also found that even had the judge not ruled the Telegraph's reporting of the documents to have been fatal to the Reynolds defence, he would have found the balance to have fallen in favour of Galloway, given the newspaper's failure properly to comply with the Reynolds principles.


The jurisprudence of Strasbourg will undoubtedly continue to impact on decisions taken in the UK courts, and may in time widen the protection afforded to the media. But for now the media's role as the watchdog of society does not extend to reporting and embellishing allegations of another with impunity - those allegations must be played with a completely straight bat. Even then, a publisher must act responsibly and in compliance with the spirit of Reynolds if he is to avail himself of the defence of qualified privilege.


The Reynolds defence was applauded when it came into being more than six years ago. But despite difficulties in getting over its threshold, it should not be disregarded now. Even in a free society we have to accept some rules, and whether the media considers those that make up the Reynolds test to be too onerous, they were intended to achieve a fair balance between conflicting rights. They were not intended as a stick with which to beat the media; but compliance is necessary if the media is going to get that defence to stick.




Ackroyd


The right to protect his source is as close to any journalist's heart as his right to publish and be damned. Being compelled to give up a vital whistleblower starts a disastrous chain of events; sources fear exposure, they refuse to speak out, wrongdoing goes undetected, the media's duty to fulfil its role as watchdog is thwarted and society suffers.


That is one argument. The other is that those who abuse positions of trust and confidence by disclosing sensitive, private information should not be able to hide under the cloak of protection of sources.


As long ago as July 2001 (see [2002] Gazette, 11 July, 29), the secure Ashworth Security Hospital - which housed 'Moors murderer' Ian Brady - succeeded in its action against MGN in the House of Lords to require the Daily Mirror to disclose a source who had passed the newspaper medical records about Brady.


The information - said to be confidential both to Brady and to the hospital - included allegations that Brady was mistreated while being force-fed during his highly publicised hunger strike against mismanagement of his ward.


The Mirror's source for the information was a freelance journalist, Robin Ackroyd, who had obtained the information from his own source. To identify that original source, and it argued, prevent any further disclosures, protect the essential therapeutic patient/doctor relationship and discipline the source, the hospital - now run by Mersey Care NHS Trust - sought a disclosure order against Mr Ackroyd.


The precedent to require one party to disclose the identity of another is commonly referred to as the Norwich Pharmacal jurisdiction after the1974 case against Customs and Excise. It provides that a party who 'becomes involved in a wrongful act of another... comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer'. In this case, the wrongdoing was alleged to be a breach of confidence by the original source, in which the intermediary, Mr Ackroyd, became involved by receiving and reporting the allegedly confidential material.


Mr Justice Tugendhat's neat summing-up of the complexities of a case such as this evidences why both sides have been prepared to battle this out for years and perhaps for years to come: 'If a disclosure order is made, that can have the most serious and irremediable effects on a source. It can also have grave professional consequences for the journalist. It may cause either or both of them to the loss of a job and a reputation. But when it has been made, and when the source is identified, it can become apparent that the source does in fact have a defence to the claimant's claim (such as public interest) and is not a wrongdoer. Conversely, if the disclosure order is not made, there is a risk that the claimant may never uncover, for example, a disloyal employee, and other loyal employees may remain under permanent suspicion, with serious effects on their careers.'


For a Norwich Pharmacal application to succeed, there must be some involvement by the third party in the alleged wrongdoing. Mr Justice Tugendhat found there had been wrongdoing in the disclosure of confidential information by the original source and that Mr Ackroyd had been involved by receiving the information.


But section 10 of the Contempt of Court Act 1981 provides that there must be no disclosure of a source unless it is satisfactorily established 'that disclosure is necessary in the interest of justice or national security or for the prevention of disorder or crime'. So should Mr Ackroyd be required to give up his source?


Since implementation of the Human Rights Act 1998, the court must, if determining any issue concerning a European human rights convention right - and here the rights were those guaranteed by articles 8 and 10, respectively privacy and freedom of speech - have particular regard to the right to freedom of expression and any relevant privacy code. The Press Complaints Commission's editors' code of practice provides at clause 14 that 'journalists have a moral obligation to protect confidential sources of information'.


To establish if the disclosure sought was 'necessary', Mr Justice Tugendhat found the relevant test in Sunday Times v United Kingdom [1979] 2 EHRR, considering whether the interference with the article 10 right to freedom of expression 'corresponded to a pressing social need' and was 'proportionate to the legitimate aim pursued'.


The hospital's aim in securing disclosure and protecting its privacy under domestic law and article 8 was, in summary, to identify the source and to dismiss him or her, preventing further disclosure and protecting patient records. Mr Justice Tugendhat considered that this might indeed constitute a legitimate aim, fulfilling a pressing social need, and the disclosure of the source might be both necessary and proportionate in reaching this end.


However, his determination as to whether this test was satisfied, balancing the convention rights at issue, depended on the particular facts of the case, and he found precedent for the approach to be taken in the decision of In re S (a Child) [2005] 1 AC 593: 'First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.'


Assessing what had been disclosed, what responsibilities the source had to the hospital and what justification, if any, he had for disclosure, the judge found that the information, while 'plainly private and confidential', was not 'intimate or highly sensitive'. He was unable to establish whether the source was a hospital employee or what other relationship the source might have had with the hospital; he considered it 'plain that they would have obtained the information subject to obligations owed by them, both to Ian Brady and the hospital'.


Having found a wrongdoing militating towards disclosure of the source, he went on to consider whether it was justified in the public interest. He found that while there is a public interest in investigating allegations of assault at a hospital, 'there is a clearly pressing social need for [medical] records to be kept private' and that 'some restriction on informing the public at large will almost always be proportionate'. The source could have told other people in the NHS, or the police; accordingly, the disclosure to Mr Ackroyd was not in the public interest.


So, if there had been a wrongdoing against the hospital that was not justified in the public interest - albeit that there was a 'misguided attempt' to do so - did the judge order disclosure of the source? No. In assessing whether the order sought was proportionate to the legitimate aim sought - the hospital's aims to protect patient records, re-inflate staff morale damaged as a result of the leak and prevent any further disclosure - he did not find this to be the case. There was little likelihood of further disclosure from a source not motivated by money, tighter procedures had been instigated at the hospital, and it was impossible to ascertain whether there was anyone still at the hospital against whom redress could be sought. There was no pressing social need to grant the order to achieve the aim, particularly 'given the vital public interest in the protection of a journalist's source'.


Having fought this issue since 1999, the claimant is not giving up now and was given permission to appeal to the Court of Appeal by Mr Justice Tugendhat. The hospital may consider the original source to be disloyal and worthy of dismissal. The newspaper may consider the source to be a brave and vital cog in the mechanism of public interest journalism. For the time being, whichever the source may be, his or her identity is safe.


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