Law: There's no right to a reputation

Should public figures be protected from press scrutiny? Are politicians fair game for the media in their capacity as watchdogs? Whose interest is being served in the UK's libel courts? By Amber Melville-Brown and Jonathan Ames
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The Independent Culture
As a phalanx of defamation lawyers represents Neil Hamilton and Mohamed Al Fayed in what promises to be a great court clash, London's reputation as the libel capital of the world seems to be assured.

Indeed, its position has been enhanced by the recent House of Lords judgment in what defamation specialists are describing as the most important case for years. When Albert Reynolds - the former Irish Taoiseach - first issued proceedings against The Sunday Times some five years ago, he probably had little idea that the action would end up in Britain's highest court and have all the libel community chattering. Mr Reynolds had taken offence at a report which suggested he had misled the Dail, the Irish parliament, and his lawyers undoubtedly advised him of the strict libel laws in the UK. Bang came a writ.

By the time the case reached the Lords, however, the Government had moved to incorporate the European Convention on Human Rights into UK law in the Human Rights Act of 1998. This proved crucial as the convention highlights the dual rights of freedom of expression - and, by extension, freedom of the press - and the right to reputation. As the Lords sat down to consider the Reynolds case, this balancing act was crying out for clarification. Even though the Human Rights Act is not expected to be implemented until October next year, the Lords would have been reluctant to view the Reynolds case without actually addressing those potentially conflicting rights.

What The Sunday Times - and by proxy, newspaper editors around the country - hoped to establish was something akin to the public-figure defence that exists in the US and to a similar extent in New Zealand. Essentially, that defence prevents editors and journalists from being successfully sued for libel by politicians, where they are attacked in their capacity as public figures, as long as the statement by the newspaper or broadcast outlet was "published" in good faith and without malice - even if, ultimately, it proved to be inaccurate or blatantly wrong.

That position contrasts sharply with the current state of UK libel law. In Britain, our defence of qualified privilege depends on a "duty-interest test". What that means in practice is that there must be a duty on the part of the maker of the statement to impart the information, and a corresponding interest on the part of the recipient in receiving it. Circumstances where this defence could typically be used include an employer's references or a complaint about a doctor to the General Medical Council.

It has not generally been used successfully by the media in defending libel actions against public figures. The Sunday Times' lawyers hoped to establish with the Reynolds case a generic qualified privilege defence relating to the publication of "political speech". That would have covered "information, opinion and arguments concerning government and political matters that affect the people of the UK".

What the Lords produced has been viewed by some as a fudge. They ruled against The Sunday Times in as much as the Lords refused to endorse a separate category of political speech in defamation proceedings. But in giving their reasons, they gave strong backing to the concept of freedom of expression, perhaps even suggesting that, in future, courts should no longer give unflinching support to reputation over the right of the media to publish.

The irony is that the lawyers acting for The Sunday Times walked away from the House of Lords ruling with a jauntier step than the journalists. Its editor, John Witherow, says the paper was disappointed with the result. "The question is: have we in practice taken the position of qualified privilege much further? I don't think we have. We are more or less stuck with the same position of having to meet a reasonableness test. We wanted to get closer to the New Zealand or US situations regarding public figures, where we can write what we believe is right - even if it is wrong - as long as there was no malice.

"We are left with what in practice is still a black and white test: if you're not right, then you pay up. In our view public figures should be open to greater scrutiny. In the future we can try to argue a bit of a public figure defence on the basis of this judgment, but I don't know that judges and juries will listen very hard."

Mr Witherow said that the paper had considered an appeal to the European Court of Justice. But, on reflection and advice from News Inter- national's legal team, it was thought the case would "last about five minutes" because the Lords had already made ample reference to European law and the Human Rights Act.

But the editor's lawyers are more positive. Lord Lester QC, who led the case for The Sunday Times, says: "The Lords have said that the public has a constitutional right to know - even in the absence of a written constitution. And that the role of the press as a watchdog outweighs reputation - even when the facts are wrong, as long as the journalists have behaved maturely and responsibly."

That view is supported by James Price QC, who was also a member of The Sunday Times team in court. "Initial press reaction has perhaps been misled by the fact that the Lords rejected the generic approach and grounded its exposition of law on traditional common-law principles," he explained. "I would expect a sea-change in the approach of the courts to media qualified privilege."

In fact, even the Reynolds side sees a silver lining in the judgment for the press. Says Andrew Caldecott QC: "It is a liberalising measure. It changes things in two ways: first, the old culture was that to attract qualified privilege outside of the statutory protection was the exception. That culture has gone. Now, where journalists are dealing with a matter of public interest, the focus is on the quality of the newspaper's investigation. Provided there's a balance between what you have said and the evidence you've got, then you have at least a running chance of attracting privilege."

All three lawyers are basing their views on remarks made in the judgment by Lord Nicholls. In it, he said that in future courts "should be slow to conclude that a publication was not in the public interest and, therefore, the public had a right to know, especially when the information is in the field of political discussion". In an attempt to clarify matters, the Lords in their judgment produced a checklist journalists should refer to when writing a contentious article about a public figure. If they can tick all the boxes, then they would be more assured of attracting a qualified privilege defence. The Lords-recommended checklist includes headings such as verifying "the source of the information", "steps taken to verify the information", "the urgency of the matter", "whether comment was sought from the plaintiff", and "whether the article contained the gist of the plaintiff's side of the story".

Mr Caldecott recommends that the broadsheets should join together to produce an agreed code of practice, which would be headlined by that checklist. He points out that the current Press Complaints Commission code of practice deals essentially with matters such as the right of reply and privacy, but does not address fully the subject of efficient investigation practices as his suggested code would.

While The Sunday Times and editors all over the UK might be disappointed by the Reynolds decision, despite the movement on qualified privilege, one specialist lawyer points out that it should not be the Lords' role to make such a move towards a public-figure defence. Solicitor-advocate David Price says: "We live in a Parliamentary democracy and any move to alter the delicate balance between reputation and freedom of speech should not be taken by judges."