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Case Notes and Comments: Variation on the Reynolds theme – the reportage defence: Roberts & Others v Gable & Others [2007] EWCA Civ 721, July 12, 2007

Communications Law

Edited by:
Dr Peter Coe
Publisher:
Bloomsbury Publishing plc
Publication Date:
January 2024

pp.175–177

Introduction

Factional infighting seems to exist in political parties in inverse proportion to their power and popularity and position on the political spectrum. The smaller the party and the farther right or left on the political spectrum, the greater the infighting over the purity of party doctrine. The hurling of accusations, insults and recriminations over events relating to a British National Party rally in East London, to promote the BNP candidates in the 2004 London mayoral and Greater London Authority elections, illustrate this point well but the resulting defamation action also gave the Court of Appeal the opportunity to flesh out a sub-category or variation of the well-known Reynolds 1 common law qualified privilege public interest defence – the reportage variation.

The claimants – two brothers – who were supporters of the current BNP leader, Nick Griffin, alleged the anti-fascist magazine Searchlight had asserted that the first claimant had stolen the proceeds collected at this BNP rally; did not return the money until threatened with being reported to the police; had threatened to kneecap, torture and kill two supporters of (and members of their families) of a rival faction connected to the previous leader of the BNP (JohnTyndall); and finally that both brothers might be subject to investigation by the police. The first defendant was an investigative journalist who was a leading expert on and opponent of the far right; the second defendant was the editor of Searchlight, and the third defendant its publisher.

Searchlight has been a persistent and vociferous critic of the BNP and its policies:

‘They [the claimants] are ill-disposed towards, even contemptuous of, the defendants and are less than flattering about their professional standards and probity. Each side is prepared to trade insults with the other and it is obvious that there is no love lost between them’ (at para 7, Ward LJ).

In a nutshell mutual allegations of theft, robbery, burglary, intimidation and threats of violence were being hurled about in various publications connected to the BNP in connection with alleged attempts to retrieve the proceeds of this rally which the two brothers were being accused of having run off with in a rapid exit from the public house where the rally was being held. Members of both the Griffin and Tyndall factions did not mince their words in accusing the members of the other faction of being guilty of criminal wrong doing in connection with the aftermath of the rally.

Reynolds qualified privilege

All these allegations and counter-allegations were reported in an article published in Searchlight entitled ‘News from the sewers’ by the first defendant. The claimants then sued for defamation and the defendants relied on justification and common law qualified privilege (the Reynolds defence). The issue of the availability of qualified privilege was tried as a preliminary issue before Eady J. The defendants relied on the so-called ‘reportage defence’ which was regarded as a sub-category of the wider Reynolds defence:

‘The defendants’ case is that the activities of prominent members of a political party are always a matter of public interest and that they were merely reporting the allegations without adopting or endorsing them thus giving them a good defence under the recently emerging reportage doctrine referred to in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2002] EMLR 215. (at para 25).

Eady J, dealing with the matter at first instance, ruled in favour of the defendants and held that the privilege defence was available. 2 On appeal three major issues arose: (i) the existence and scope of the ‘reportage defence’; (ii) whether the defendants were genuinely neutral reporters and (iii) the inter-action of the defence with the doctrine that it is not a defence to say you are merely repeating a defamatory statement made by someone else. 3

Reflecting the strictures of the European Court of Human Rights 4, Eady J took an expansive view of the reportage exception, seeing it as not a separate defence but a specific application of the Reynolds defence. In particular, he held that the exception was available to reporting by a declared opponent and also that the verification criteria specified by Lord Nicholls in Reynolds did not apply with the same degree of rigour in reportage cases or only where the most serious of allegations were being bandied about:

‘There is a duty (“social or moral”) upon political commentators generally including Mr Gable [the writer of the Searchlight article], to cover the goings-on in political parties, including disputes, fully and impartially. There is a corresponding legitimate interest in the public, and especially those who have a vote, to have such information available’ (at para 36 [2006] EMLR 23).

By a majority the Court of Appeal in the Al-Fagih case had permitted the use of the reportage defence in relation to the reporting by a newspaper partially owned by and loyal to the Saudi Arabian regime of allegations of sexual impropriety made by one member of a committee of Saudi dissidents against another member, and the defamatory response of the accused man. 5 The court had held that the repetition rule was relevant to the defence of justification and not to qualified privilege defences. Although the decision was finely balanced the majority decided that the fact that no serious attempt had been made to verify the respective allegations should not prevent the reportage exception being invoked:

‘I am saying, however, that there will be circumstances where, as here, that may not be “most unsatisfactory”, where, in short, both sides to a political dispute are being fully, fairly and disinterestedly reported in their respective allegations and responses. In this situation it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other’ .per Simon Brown LJ at para 52.)

Reportage exception affirmed

Undoubtedly the ‘kick-start’ given to the Reynolds defence – faltering because of restrictive interpretation in first instance decisions – by the House of Lords in Jameel v Wall Street Europe Sprl 6 had a liberalising impact on the decision in the Roberts case. 7 In addition, perhaps Ward LJ observed perhaps rather complacently: ‘Like this court in Galloway 8 , I am satisfied that we walk in tune in step with the Convention and the Strasbourg jurisprudence and no radical departure from our approach is necessary’ (at para 52).

As a variation on the main Reynolds defence reportage was subject to an overriding tests of being in the ‘public interest’ and meeting the standards of ‘responsible journalism’ – a general fallback requirement to be applied whatever the many fact permutations raised in the case law (see Ward LJ at para 61, point 6).

In addressing the claimant’s points about the scope of the defence, firstly the court reiterated that the repetition rule was relevant only to the defence of justification and not privilege:

‘So the answer to the first question is that the repetition rule and reportage are not in conflict with each other. The former is concerned with justification, the latter with privilege. A true case of reportage may give the journalist a complete defence of qualified privilege. If the journalist does not establish the defence then the repetition rule applies and the journalist has to prove the truth of the defamatory statement’ (Ward LJ at para 59).

Secondly reportage was not to be confined to political disputes – as an aspect of the Reynolds defence this followed from the rejection of a generic ‘political reporting’ defence in that case. Nor was it confined to any particular type of allegation – suggestions by Latham LJ in Al-Fagih that the allegations of criminality might be outside the exception was rejected (Ward LJ at para 61, point 7). Though the court, following the view of Lord Hoffman in Jameel, made the point that the more serious the allegation, the more important it was that it should make a real contribution to the public interest element in the article.

Verification played a much less significant role in reportage – in a true case of reportage there is no need to take steps to ensure that accuracy of the published information because the whole thrust of the exception is that the report is not the truth of the statement but the fact that the statement was made:

‘If upon a proper construction of the thrust of the article the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy. He is absolved from that responsibility because he is simply reporting in a neutral fashion the fact that it has been said without adopting the truth’ (Ward LJ at para 61). 9

One of the problems with the first two important cases on reportage is that neither of the publications involved were disinterested observers – in fact both had a positive desire to damage the other parties involved. Despite this, both were able to avail themselves of the reportage exception, though the court would have to look very closely at the manner of the reporting. Providing the reporter stays within the bounds of reportage, that will not disqualify reliance on the exception: ‘nothing in the law denies the reportage defence to a defendant who is taking a perceptible pleasure in reporting the controversy’ (Sedley LJ at para 74).

It also has to be said the Court of Appeal permitted quite a degree of latitude to the journalist by refusing to be drawn into a detailed dissection of the article which on some constructions from the title onwards (‘News from the sewers’) could have been taken to be saying this is just the sort of thing we might expect from BNP members and their ilk? 10 ‘Journalists are to be given a degree of licence for snap editorial judgments and again the appellant courts warn of the dangers of an overly rigorous hindsight based approach’ (Ward LJ at paras 67–68).

Conclusion

The Roberts case reflects the continuing trend at appellate level to rebalance the law of defamation in favour of the defendant, particularly in cases with a political content. The ‘reportage’ variation under the general Reynolds qualified privilege umbrella gives scope to the press to report the internecine mud slinging which often takes place in fringe parties and dissident groups and between supporters and opponents of particular regimes. As with the principal Reynolds defence it is a flexible exception giving judges quite a degree of latitude in deciding whether particular facts constitute ‘reportage’ or not. The proof of the pudding, as ever, will be whether judges at first instance give a broad or narrow interpretation to the exception.

While the defence is not limited to mutual political recriminations, it will be interesting to see whether judges are quite so willing to permit reportage where little or no attempt is made at verification in a non-political context. The concerns of Sedley LJ in Roberts about the scope of the defence – with the suggestion that it be interpreted ‘restrictively’ as opposed to the more open-ended approach of Ward LJ – show that there may well be some reluctance to use it, particularly where very serious allegations of criminality are made. It is one thing to permit reportage in relation to a fringe group no stranger to an ambience of violent clashes, but quite another to permit accusations of criminality in relation to more mainstream figures. As with the general Reynolds defence, only subsequent precedents will show how successful the reportage exception will be for the media.

Howard Johnson

Bangor Law School

Footnotes

  • 1

    Reynolds v Times Newspapers Ltd [2001] 1 AC 127.

  • 2

    [2006] EMLR 23. On appeal it was argued, by the claimants, that Searchlight had ‘adopted’ the allegations and not merely neutrally reported them and failed to verify the accuracy of them so falling below the standard of ‘responsible journalism’ and thus failed to satisfy what the claimants argued were the four conditions for the reportage exception to apply: (1) there is a continuing and active public dispute on a matter of public interest; (2) where the urgency of the matter makes verification in the ordinary way difficult or undesirable; (3) the reported allegations are attributed and not adopted and (4) the reported allegations do not involve misconduct which has wider ramifications – that is misconduct which potentially exposed (at para 29).

  • 3

    See Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 (PC), Lewis v Daily Telegraph [1964] AC 234, Stern v Piper [1997] QB 123, Shah v Standard Chartered Bank [1999] QB 241 and Mark v Associated Newspapers Ltd [2002] EMLR 38 (where repetition rule held compatible with Strasbourg Art 10 jurisprudence).

  • 4

    Quoting Ukrainian Media Group v Ukraine (Application no 7231/1, October 2005), (2006) 43 EHRR 25.

  • 5

    [2002] EMLR 13 – Mantel LJ (dissenting) refused to overturn the exercise of the trial judge’s discretion in refusing to apply the Reynolds defence basically because the allegations were a ‘malicious and gratuitous sideswipe in the ongoing political debate’ and of which a greater attempt should have been made to verify accuracy given that the publication of the allegations was not an urgent matter (at paras 61–63). Latham LJ expressed the view that the fact that the allegations were not as such germane to the political split in the Committee was not the central question – ‘It seems to me that in this context, what is said by one side in relation to the other is itself of considerable interest. This is so whether what is said is of high political importance, or merely scurrilous gossip or personal accusations. The fact that allegations of the latter sort are made rather than the former enables the interested reader to obtain some insight into the nature of the dispute. It is the fact of the allegation of a particular nature, has been made which in this context important, and not necessarily its truth or falsity.’ (at para 65 – see slight qualification by Sedley LJ in Roberts case at para 76) It should be observed that, in Al Fagih, the allegation that the one party had spread malicious rumours of sexual impropriety was only one of six accusations against him and the other five were all of a more directly political nature relating to the running of the dissident committee.

    In Roberts, at first instance, Smith J felt that the newspaper had taken sides so ceasing to be neutral reporters and ‘the potential harm to the claimant from publication of the unverified allegation outweighed the public interest in publication’ – so failing to observe standards of ‘responsible journalism’. Smith J was also influenced by the fact source of defamatory statement ‘had an axe to grind’ and this made need for some attempt at verification even greater. Smith J also felt that the reporter had been ‘reckless’ (and thus guilty of malice) in not asking to hear some tapes on which statements concerning the original sexual allegations were made.

  • 6

    [2007] AC 359. At para 62 Lord Hoffman observed: … ‘there are cases (“reportage”) in which the public interest lies simply in the fact that the statement was made … when it may be clear that the publisher does not subscribe to any belief in its truth,’ and Lady Hale at para 149: ‘The requirements in “reportage” cases where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well-advised to make this clear. In any case, the tone in which the information is conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on.’

  • 7

    See Ward LJ’s observations at para 32 – though Sedley LJ observed at para 74 ‘I would accept … that because the reportage defence modifies the repetition rule in the interests of Reynolds privilege, it needs to be treated restrictively.’

  • 8

    Galloway v Telegraph Group Ltd Ltd [2006] EMLR 221 and reliance was also made on the ‘reportage’ case of Verlagsgruppe News Gmbh v Austria (Application no 76918/01), [2007] EMLR 13 – though in this case not mutual recriminations but the publication of a photograph of a prominent Austrian businessman who was being investigated for tax evasion and had been subject to an attempt to kill him – see Ward LJ at paras 50–52 – while at one level his observation is true jurisprudentially it is probably still true to say, at least at first instance, that English judges tend to require a milder level of critical judgment for hostile passages to pass muster under the various defences (author’s view).

  • 9

    This is to be assessed objectively whatever the journalist may have set out to achieve and is for the judge to rule on – yet again minimising role of jury in defamation cases. Though the assessment goes beyond words of the article itself to cover ‘All the circumstances surrounding the gathering in of the information, the manner of its reporting and the purposes to be served will be material’ (Ward LJ at para 61 point 4).

  • 10

    As Sedley LJ puts it: ‘When Baroness Hale in Jameel says (at para 149) that the tone in which the information is conveyed will be relevant to whether the publisher has behaved responsibly in passing it on, I do not imagine that she means the reportage defence to be a prize for bland journalism. Such a view would be inconsistent with what the European Court of Human Rights held in Radio France v France [[2005] 40 EHRR 706]. I understand her to mean that the defence may be forfeited by a presentation which is such to undermine the claim to be publishing in the public interest’ (at para 74). Again Ward LJ permits an element of ‘sarcastic speculation’ (see para 68).