Publish and be reasonable
Jameel and others v Wall Street Journal Europe Sprl [2006] UKHL 44



Serious and responsible investigative journalism has been freed from the shackles of a defence intended to free it from the shackles of UK defamation law.



The liberalising defence of public interest, colloquially known as the Reynolds privilege defence after Reynolds v Times Newspapers Ltd (see [1999] Gazette, 17 November, 38) has been given a new lease of life.



Reynolds qualified privilege protects defamatory publications on a matter of public interest published responsibly. However, while intended to give greater protection to free speech, it has been construed strictly, leading to criticism that in effect it was nothing more than a series of high hurdles over which the media must clamber towards the distant defence of privilege.



The decision by the House of Lords in Jameel has effectively torn down those hurdles, so that the route to success is no longer an obstacle course, but a potential venue in which the media may showcase the extent of its responsible journalism. According to one of the Law Lords hearing the case, Baroness Hale, 'we need more such serious journalism in this country and our defamation law should encourage rather than discourage it'.



How one assesses the extent of the responsible attitude of the publisher has been the sticking point for the defence so far. In Reynolds, Lord Nicholls set out a series of matters that could be taken into account by the court, expressing them as a non-exhaustive list. However, they soon came to be known - and treated - as a 'ten-point test'. According to Lord Hoffman: 'They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail.'



In Jameel, the newspaper tripped over some of those hurdles. The story was set against backdrop of the September 2001 attacks on the Pentagon in Washington and the Twin Towers in New York. When investigations revealed that most of the hijackers were from or had a connection with Saudi Arabia, a UN Security Council resolution was passed requiring all states to prevent and suppress the financing of terrorist acts. The co-operation of the Saudi Arabian government and its central bank SAMA was sought, and whether they were complying with the resolution became a matter of interest and speculation. Dow Jones Europe published an article that referred to the fact that SAMA was monitoring the bank accounts of some of the country's most prominent businessmen to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. It included the name of the claimant's company.



The claimants took offence at suggestions that there were reasonable grounds to suspect and/or to investigate their involvement. The investigation, reporting and publishing of the article came under scrutiny, with the sources for the article and the timing of and way in which comment had been sought also considered. In particular, the lower courts took the view that not giving the claimant sufficient time to respond to the allegations, with the result that no counter argument was included, was fatal. The jury awarded damages.



However, the Lords has now placed the defence firmly back within the reach of media defendants. Yes, they must act responsibly, but that does not mean ticking a set number of boxes. The court will assess whether the publication concerns a matter of public interest; according to Lord Hoffman: 'Newspapers are not often the best judges of where the line should be drawn.'



Then, if the general matter is one of public interest, the court considers whether the inclusion of the defamatory statement itself was justifiable. Here, importantly, there must be some room for 'editorial judgement'; the defence should not be defeated simply because the judge may, with the 'advantage of leisure and hindsight', have made a different editorial decision. 'Each piece of information will take its colour and its informative value from the context in which it is placed,' said Lord Hope, echoing the margin of appreciation to be given to the media as to how a particular story is illustrated (referred to by the Lords in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 WLR 1232, [2004] EMLR 247). Having established that the publication as a whole, including the defamatory material, is in the public interest, the court then undertakes an analysis of whether the publication was responsible and fair.



The Lords first considered that the article was one of significant public interest. 'If the public interest defence does not succeed on the known facts of this case, it is hard to see it ever succeeding,' said Baroness Hale. Next, it did not agree that the newspaper had failed to show it had behaved responsibly. Lord Bingham considered that 'weight should ordinarily be given to the professional judgement of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner', and that failure to allow the defence on the ground that the publication had not been delayed to allow comment from the subject was 'a very narrow ground on which to deny the privilege', which 'subverts the liberalising intention of the Reynolds decision'. Lord Hoffman clarified: 'The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information.' While he thought that 'it might have been better if the newspaper had delayed publication to give Mr Jameel an opportunity to comment in person', given the steps taken to attempt to verify the story through other sources, 'I do not think that their failure to do so is enough to deprive them of the defence that they were reporting on a matter of public interest'.



Lord Scott added that newspapers and their reporters should 'take such practical steps to verify the truth of what is reported. Fairness to those whose names appear in newspapers may require, if it is practicable, an opportunity to comment being given to them and/or an opportunity to have a response published by the newspapers'. But failure to do this will not necessarily deprive the defendant of the defence. Lord Scott continued: 'These are all circumstances the weight of which in assessing whether a report should be protected by qualified privilege will vary from case to case. Lord Nichols made all of this clear in Reynolds.'



This decision should interest not only those in the media field, but anyone who values the right to free speech and anyone who reads the newspapers. The Law Lords unanimously held that the defence had been too rigidly applied by the Court of Appeal; by a majority that no retrial was needed; and by a majority to reject the argument, also raised by the defendants, that corporate clients should prove financial loss to maintain an action in defamation.



The overall result is clarification that the Reynolds defence is not a strait-jacket to constrain an unruly media, but rather a key to the door of press freedom that should only be closed if the media shows that it cannot be trusted with this privilege.



The media may feel it has more lead in its pencil to write and publish stories of public interest, and that it is freed to use its editorial judgement as to how to illustrate stories of public interest. Whether and how this will translate into what we read in newspapers remains to be seen. But while Reynolds has been simmering on the stove for seven years, ten matters have been boiled down into one requirement - publish responsibly.



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