While the result of George Galloway’s High Court victory over the Telegraph may be seen as a blow to free expression in some quarters, it is fundamentally sound in its application of legal principle. Incursions into the media’s freedom to publish scoops on corruption or other form of malfeasance, especially where our elected politicians are concerned should be vigorously defended however, where that which is published forms the basis of allegations of high treason, the message for the media is that the judge will be the final arbiter over what is fair and accurate reporting.
On one level, the Galloway case is relatively straightforward. The fact of publication or defamatory nature of the contents was never in issue. The fact that the authenticity of the documents that formed the basis of the publication could not be proven – or a newspaper could not reasonably be expected to be in a position to have the resources necessary to verify such documents was also not disputed. Unusually perhaps, the facts which would normally be put to a jury to deliberate on, were accepted by both parties and the judge as being sufficient to warrant dispensing with a jury in this case.
What was at issue was whether, in presenting those facts, the Telegraph was entitled to rely on the defence of qualified privilege (or the associated fair comment defence) in response to a claim for defamation. It is largely accepted that when it comes to pleading qualified privilege as a defence, evidence of malice can extinguish the right to the defence. So in this sense one could argue that the Telegraph did not have the strongest of cases.
But Galloway’s case did not rely on malice, instead it attacked the fairness and accuracy of the reporting or ‘neutral reportage’ as it was referred to. It is here that the case enters a more complex and controversial level. What sits uncomfortably with the media and which has clearly emerged from this case is that the courts will substitute their view of what amounts to ‘responsible journalism’ over that of an editor.
To assess ‘responsible journalism’ the court will look at the context of the publication as well as the duty of the media to inform the public and the public’s corresponding interest in the story. In his judgment Mr Justice Eady acknowledged that this gives rise to an ‘undesirable tension’. In the Reynolds context, it is the judge who has to decide whether the publication was in the public interest.
What his judgment makes clear and which should be of concern to the media is that when it comes to assessing the fairness and accuracy of a story, the courts will look beyond the construction of what is said and take into account the surrounding circumstances. The media are therefore subjected to a much wider test. The courts will now ask two things; first, is the report itself fair and accurate? and second, were the circumstances surrounding the preparation and presentation of that report fair and accurate?
This was the first hurdle at which the Telegraph’s case fell.
The second, concerned the neutrality of their reporting or reportage. In the Al Fagih libel case Lord Justice Simon Brown helpfully defined ‘reportage’ as a “convenient word to describe neutral reporting of attributed allegations rather than their adoption by the newspaper”. So how does one assess neutrality? Both the judgment in Al Fagih and now Galloway make clear that neutrality means not adopting the allegations contained in the publication. In other words, you can publish and comment on documents but what you cannot do is to subsequently adopt the content of those documents to form the basis of your comment. This extinguishes both the fairness of your comment and neutrality of your reporting.
Based on this assessment, the Telegraph’s defence was bound to fail. The privilege they sought to rely on was qualified and they had not measured up to Mr Justice Eady’s assessment of being eligible for or entitled to such qualification.
The defence of qualified privilege having failed, the further appeal the Telegraph made was that the denial of this and the associated fair comment defence (which failed because it depended on privilege having been established) amounted to a breach of the basic freedom of speech guarantee conferred by the European Convention. This is indeed a serious charge and if proven would have serious implications for the media. Mr Justice Eady went to great lengths to examine recent and relevant European cases, notably Thoma v Luxembourg and the Finnish Selisto case. The facts of these were slightly different but the judgments provide useful guidance in this case. In the Thoma case the distinction is made between adopting a story and distancing oneself from it. What the European Court stated was that it would infringe on a journalist’s right to free expression if they had to actively distance themselves from a story they are reporting. Adopting a story as the Telegraph did, would not, it seems, qualify for protection from the laws that are ‘necessary in a democratic society’ that qualify the convention right to free expression. In relation to the Selisto case, it turned on whether someone claiming to have been defamed by a report was only defamed through incidental inclusion as part of a wider discussion of issues as opposed to being singled out. It was clear that the Telegraph had very much singled out Galloway.
So ultimately, although Mr Justice Eady said he was making “all due allowance for the encouragement towards the wider and more flexible use of the common law principles in Reynolds” he was unable to uphold a defence of privilege. As he had found ..”the Defendants were not neutral. They did not merely adopt the allegations. They embraced them with relish and fervour”
What the Galloway case does is add a further qualification to qualified privilege. While qualified privilege as a defence has not been abolished, it has been sidestepped and subjected to further qualification. So the media need to add an 11th point to the 10 point test for applying qualified privilege set out by Lord Nicholls in the Reynolds case - whether in publishing, a newspaper or broadcaster can satisfy the judge that their interpretation of the duty-interest test which led them to publish amounts to 'neutral reportage'
While the finding that by adopting the allegations of their story, the Telegraph had forfeited the right to rely on a defence of qualified privilege may seem jurisprudentially fair, it has wider implications from a journalistic point of view. Mr Justice Eady has made it clear that in cases such as this, it will be the judge who is the final arbiter over what is 'neutral reportage'. He acknowledged that what can be seen as judicial disenchantment or unease in embracing the Reynolds defence, is in part down to the lack of opportunity to develop or define its application. The irony is that such opportunity as has arisen, the courts (notably Mr Justice Eady) have adopted a narrow and cautious approach.