Republishing libel – what’s the story?

Derek Draper and Damian McBride ­certainly intended their ‘Red Rag’ blog to stir up controversy by smearing the ­reputations of their political enemies, and they hoped that by doing so they would ultimately damage the Conservative Party.

The trouble is that, even while the project was merely formulated as an idea in a ­private exchange of emails, it had already made its way into the public domain. The result is that defamatory and wholly untrue allegations have in the end caused immense personal damage to Gordon Brown, as well as to the Labour Party.

Newspapers have been desperate to report the full story with all of the political implications because it is plainly a matter of public interest to do so. At the same time, the public is agog to know exactly what was said that was so scandalous.

This poses a problem for newspapers, because it is of course no defence to ­republish allegations even if no suggestion is being made that the allegations are true. It has long been acknowledged that republishing defamatory words only serves to spread the contagion of a libel to a wider audience.

Even if the allegations were to be ­republished with a clear disclaimer and acknowledgement that they are untrue, that may not necessarily stop a successful claim for defamation or prevent the matter being referred to the Press Complaints Commission (PCC). Damages awarded for the former may be low, depending on how plain it was made that the allegations were untrue, but of course that it not the point. In relation to a PCC complaint, damages are not in issue anyway.

The wife of the Shadow Chancellor of the Exchequer, Frances Osborne, has already complained to the PCC about the fact that wholly false allegations were gratuitously repeated in newspapers that, she says, failed to take sufficient care to make it clear that the allegations were unfounded.

This begs the question as to whether it is ever possible to explain the political consequences of such a smear campaign or to engage in a debate about the permissibility of such conduct (which would plainly be in the public interest) without being able to explain to the public why the allegations were so damaging in the first place.

Newspaper editors currently have to tread a very difficult line to avoid ­republishing a libel, while at the same time fulfilling their public duty to inform. Each has plainly taken a different position in the debate and some editors have been ­considerably less cautious than others.

The important thing for each is to avoid ­perpetuating the libel and giving their readerships the slightest impression that ‘there is no smoke without a fire’.

The situation is made all the more absurd by the fact that, on the ‘blogosphere’ (a fertile ground for innuendo, rumour and downright lies), these and many similar allegations are already freely circulating, as anybody with access to the internet can ­discover with the click of a mouse.

The PCC and the courts will soon need to grapple with the public interest issues raised by this controversy and settle whether there could ever be a justification for republishing an acknowledged libel as part of a legitimate political or public interest debate. At the moment it is ­difficult to see how they can do so.