Paper trials shift balance of power to publishers as Supreme Court backs fair comment
The Supreme Court restored the status quo when it endorsed unanimously the use of the Reynolds defence – the defence of public interest for responsible journalism – last week, overturning the Court of Appeal’s (CoA) July 2010 ruling. Yet there is a danger that wholesale libel reform could cause further litigation headaches for the sector.
“It’s definitely a good decision for defendants,” states RPC partner David Hooper. “The problem with the Court of Appeal decision and the requirement of verification was that it ran the risk of taking a step backwards.”
In overturning the CoA ruling the Supreme Court has ended “a terrible phase of uncertainty”, according to Gill Phillips, director of editorial legal services at Guardian News & Media.
The matter concerned exactly when the defence of public interest can be invoked. Former Metropolitan Police sergeant Gary Flood instructed Edwin Coe partner Nick Neocleous to launch a libel claim against The Times after the paper published a story alleging that he had sold information to Russian oligarchs about extradition requests.
The policeman had previously been investigated by the Met, but no charges were brought prior to the story being published online. Flood sued for libel, complaining that the article meant there were strong grounds to suspect that he had abused his position as a police officer.
In response, The Times, which instructed One Brick Court’s Richard Rampton QC and Doughty Street Chambers’ Heather Rogers QC directly, invoked the Reynolds defence, arguing that the story was in the public interest.
The first-instance judge Mr Justice Tugendhat found in favour of the newspaper, but the CoA begged to differ.
Giving the substantive ruling at the appellate court, the Master of the Rolls Lord Neuberger stated: “Of course, it will add something to the substance and newsworthiness of the story that the police are investigating the claimant, but it seems to me that it would be tipping the scales too far in favour of the media to hold that not only the name of the claimant, but the details of the allegations against him, can normally be published as part of a story.”
“The decision of the Court of Appeal was a worry,” admits Phillips. “By contrast, Tugendhat’s ruling was sound.”
Nevertheless, Taylor Wessing head of media law Niri Shan believes that the case going all the way to the country’s final court of appeal shows how difficult the privileged defence can be for lawyers.
“The case had to go all the way to the Supreme Court for The Times to win,” he says. “It demonstrates a need for wider libel reform.”
Indeed, further libel reform is on the way.
Earlier this month the Government published its response to a draft defamation bill that was first mooted last March, with justice secretary Ken Clarke effectively endorsing it.
Among the key proposals is the plan to replace the draft bill’s test of ‘substantial harm’ to reputation with a ‘stricter test’ of ‘serious harm’. The higher threshold, combined with procedures allowing key issues to be sorted at the preliminary stage, will go some way to allaying concerns about corporates suing publications.
A further tweak of the law includes a proposal to add a clause that would clarify the meaning of ‘bare opinions’ in honest comment, meaning that opinion articles that do not represent the true facts of the subject matter may not be protected by privilege.
While this may be welcomed by the reform lobbyists, media lawyers question what, if any, difference it will make in practice.
Some lawyers suggest that if the reforms are too narrow they could spark a new round of litigation as newspaper groups attempt to test legal boundaries.
“Piecemeal libel reform’s very dangerous,” asserts Matrix Chambers’ Hugh Tomlinson QC, who appears for claimants on a regular basis. “There’s a serious risk because it could cause more litigation. Either there should be total reform or the judges should be left to get on with it.”
And Tomlinson is not a lone voice.
“The point is that it will still be the same judges applying the same laws,” says RPC’s Hooper.
Suit on site
The pair agrees that where it may make a difference to have some legal clarity is in the area of internet provider liability.
Having said that, Tomlinson says that “the judges have reformed the law in that area too”.
The silk is referring to Mr Justice Eady’s ruling in a defamation claim brought by former Conservative councillor Payam Tamiz against Google, in which judgment was handed down earlier this month (The Lawyer.com, 5 March).
Developing the law, Eady J ruled that Google was not regarded by the court as a publisher under the established principles of common law and therefore was not liable for comments on a blog it posted.
“That decision is taking quite a big step forward from where we were before,” Phillips comments.
Should wider reforms be in the pipeline, the Government must base them on the media issues being discussed more widely, such as the ongoing Leveson Inquiry and the reports coming out of the Commons Select Committee for Culture, Media and Sport.
For the libel reform lobby, the noises being made by the Ministry of Justice are to be welcomed. At the same time the country’s most senior judges are in vogue with the newspaper lawyers. It is too soon to say that a consensus has been struck by the media law reformers, but they are starting to pull in the same direction.