Did you know that after its monumental gaffe of wrongly linking Oryx – a diamond mining firm – to Osama Bin Laden, the BBC still has a defence? The Beeb is expected to plead a defence of qualified privilege. This was established in 1999, when The Times was sued by former Irish Taoiseach Albert Reynolds. The Times lost, but the ruling said that the media may have a defence to a defamation action even when stories are wrong or unprovable. Lord Philips devised a 10-point plan to illustrate this, which included the seriousness of the allegation, the nature and source of the information, the steps taken to verify it and the urgency of publication.
The Reynolds test was used for the first time when Russian businessman Grigori Loutchansky brought a case against The Times after it alleged he was involved in money laundering and smuggling nuclear weapons. Mr Justice Gray ruled that a qualified privilege defence must rely on a journalist or an editor proving that they acted responsibly in publishing an article.
But the qualified privilege defence is in its infancy. If Reynolds conceived it, then Loutchansky cut the umbilical cord, and in a recent judgment, the method of applying both the Reynolds and Loutchansky rulings was born. In English v Hastie, the case of a defamatory article published by financial trade magazine Insurance Insider decided last month, Judge Gray applied both Reynolds and Loutchansky for the first time. He used the Loutchansky principle of responsible journalism, but also applied the Reynolds 10-point plan. The article was entitled 'Foul play at castle Trenwick' and had a standfirst which read: “As accusations of breach of contract and interference start to fly, the puzzle surrounding the departure of Russell English deepens.” It alleged that reinsurance company Trenwick had acted in breach of contract with Fairmont. As well as terminating the contract, the article alleged that Trenwick had diverted funds that it should have used in its Fairmont contract into the hands of Trenwick associates. Russell English was the managing director of Trenwick, and the article claimed he had resigned. The Insider lost the case.
Insider editor Peter Hastie reported the story from a writ issued by Fairmont's solicitors. The Insider claimed that it was in the interest of the insurance market to receive the information. It used the Reynolds defence and at no stage claimed that the allegations were true. Judge Gray also used Reynolds and Loutchansky to judge if the Insider had acted responsibly.
As Nick Attfield of Lovells noted in the Press Gazette on 10 January: “By claiming qualified privilege a defendant may find that its journalists' methods are on trial more than the defamation claim itself.” This seems to fit with the Insider case. It claimed that it performed seven steps in researching the article. Judge Gray found only one claim to be true, suggesting that it was not responsible journalism. He then went beyond Loutchansky and Reynolds to help the media with future defence tactics. The Insider claimed that it was merely reporting a set of circumstances. Judge Gray said that qualified privilege defences should be limited to investigative journalism.
But this is not always the view of the Court of Appeal, which finds the concept of freedom of expression much more seductive. It recently overturned a judgment on Al-Fagih v HH Saudi Research & Marketing concerning a Saudi newspaper article. The article was reportage and was not wholly verified, but the Court of Appeal said this did not outweigh the public entitlement to be informed of the political dispute. Hastie based his defence on Al-Fagih. Could Judge Gray's judgment against Hastie be another sign of the deepening rift between the High Court and the Court of Appeal on qualified privilege?
Judge Gray's concentration on responsible journalism makes sense. A qualified privilege defence should be used only when an article is both libelous and wrong. The only defence that is left in this situation is that the journalist acted responsibly.
Gray's emphasis on investigative journalism is good news for the BBC, as the Oryx story was more investigative than reportage. But if the BBC wins on a qualified privilege defence, it may be time for reflection. The BBC issued a 60-second apology stating: “We were wrong about Oryx Natural Resources.” As fashion once had us believe that brown was the new black, could media law really develop to convince us that wrong is the new right?