Mark Stephens: The 'Telegraph' has no right to appeal

It looks as if the excitement of a scoop got the better of the 'Telegraph'

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It has taken George Galloway 18 months to get justice from The Daily Telegraph. The paper had claimed that it was justified in publishing the content of documents which suggested that the former Labour MP was in the pay of Saddam Hussein. They didn't argue that the implied allegation was true, but claimed that the public was entitled to be told of the existence of the documents.

It has taken George Galloway 18 months to get justice from The Daily Telegraph. The paper had claimed that it was justified in publishing the content of documents which suggested that the former Labour MP was in the pay of Saddam Hussein. They didn't argue that the implied allegation was true, but claimed that the public was entitled to be told of the existence of the documents.

I can't pretend that I'm impressed by the performance of the Telegraph's journalists in all this. This was irresponsible journalism and they got what was coming to them.

Whatever one's views of Galloway and his politics, members of the public will have been left in little doubt that he was being accused of being in the pay of Saddam Hussein, secretly receiving sums of the order of £375,000 and that he diverted monies from the oil for food programme, thus depriving the Iraqi people of food and medicines, and that overall what he had done was tantamount to treason. "No trifling matter..." as the judge, Mr Justice David Eady, wryly pointed out.

There is a defence of "neutral reportage". If the rather drier, less opinionated and more factually based reporting found in, say, the United States had been deployed by the Telegraph in this case, they would likely be £1.5m richer today. Thus if the Telegraph had reported, "Here is a document, we don't know whether it was relied on by the Iraqis but we found it in an Iraqi ministry. Mr Galloway says it's a fake and denies any wrongdoing but the Telegraph calls for an investigation to establish the facts..." that would have been a fair report of important information conveyed in an even-handed manner - true neutral reportage - leaving the public to make up its own mind as to what to take from the report.

What clearly concerned the judge was the sense that George Galloway had been "sandbagged" by The Daily Telegraph. The trenchant way in which Mr Justice Eady criticised the newspaper for not giving an opportunity to George Galloway to read the documents beforehand, or even to put the allegations of personal enrichment to him at all, led to the stench of foul play filling Libel Court 13.

The executive editor of the Telegraph, Neil Darbyshire, generously accepted that the company had lessons to learn from the case. Might I suggest that the first such lesson is that news is news and comment is comment, and they need to be kept distinct. The tendency to blur the distinction has been increasing for almost a century, in part because, in a democracy, it is often easier for a journalist to take refuge in a defence of "fair comment" than to provide an irrefutable fact. In 1998, the law of qualified privilege was extended to protect and encourage investigative journalism. The touchstone of this extended defence may be summed up generally as "responsible journalism".

But the Telegraph did not behave responsibly, as the judge made obvious. It is clear to the casual or disinterested observer that the Telegraph's primary case, that its coverage had been no more than "neutral reportage" of documents discovered by a reporter in the badly damaged Foreign Ministry in Baghdad, was a grave mischaracterisation of the nature, content and tone of that newspaper's coverage - that alone makes this a bad case for appeal.

It is surprising, assuming good faith, that those who made the key decisions thought their coverage was responsible and impartial, or could be presented as being such. It looks as if the excitement of a scoop got the better of them. Newspapers have obligations as well as rights. Free speech is not a licence. To bring a bad case and invite a bad judgment, to which thankfully the judge did not come, is to take a liberty. And to indulge in bad journalism - by, for example, making more of a document than the facts can bear - is to invite judgments which curtail free speech.

Today The Independent on Sunday reports that the Telegraph is thinking of going to the European Court of Human Rights with a claim that the British Government is not doing enough to defend free speech. Here again, the Telegraph should consider its responsibilities. To justify such an action, it would need to be sure it was putting a good case which would have desirable consequences and set a good precedent for free speech in Europe. As things stand, the European Court has been quite bad at protecting free speech. Another bad judgment could do great damage, particularly in Eastern Europe where it most needs protecting.

It is true there is plenty wrong with our libel laws. The fact that about 95 per cent of cases are won by the plaintiff is evidence of that. And there were aspects of Mr Justice Eady's judgment that alarmed me. But overall, this judgment is likely to be to the benefit of good journalism. The Telegraph should recognise that.

Mark Stephens is a lawyer specialising in the media

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