West Law Report

MALIK v NEWSPOST LTD & OTHERS

Posted in Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 17/01/2008

Queen’s Bench Division
Eady J
December 20, 2007

Libel – Newspapers – Privilege – Responsible journalism – Unsubstantiated allegations of fact in newspaper – No effort to obtain claimant’s comment or check facts – Availability of defence of Reynolds privilege

FACTS

The court was required to determine the availability of the defence of privilege in a libel claim brought by the claimant Labour Member of Parliament (M) against the defendants in respect of two publications.

The first publication was a reader’s letter written by the third defendant (S) to a newspaper owned by the first defendant and edited by the second; the second publication was a subsequent interview with S in the same newspaper. Both publications were concerned with a recent local council election in M’s constituency in which S had lost to a Labour candidate.

M’s pleaded natural and ordinary meanings of the publications were that M had organised and directed gangs to disrupt the voting and to threaten and intimidate voters, and was therefore guilty of serious criminal offences, that he had exhorted and put improper pressure on voters to vote according to their ethnic or religious affiliations and that by his actions he had shown himself to be a racist and dangerous extremist who was not fit to hold public office. The newspaper did not make contact with M before publication and did not report any response from him. At the close of evidence M invited the judge to decide whether the defence of privilege under Reynolds v Times Newspapers Ltd [2001] 2 AC 127 was available to the defendants.

ISSUE

Whether the Reynolds defence was available to the defendants.

HELD (judgment accordingly)

It was clear that neither publication could remotely be classified as investigative journalism, yet it was that type of journalism that the defence was intended to protect or promote. The courts had not previously addressed the question of how far, if at all, it could assist a contributor, such as S, who was not a journalist and was not performing the functions of a journalist. On the face of it, therefore, Reynolds privilege would have no application.

Yet it was necessary to consider the broader issues of public policy upon which were founded not only Reynolds privilege, but also the closely related public-interest privilege previously applied from time to time, Adam v Ward (1917) AC 309 considered. Sometimes it could be in the public interest for allegations to be generally disseminated through the media by means that could not be labelled as journalism. There could be circumstances where it was the information itself, and the public interest in receiving it, that was important rather than the means of conveying it. In such a case, some of the public policy considerations identified in Reynolds might well be engaged.

Therefore privilege obviously could not be ruled out of court altogether just because the instant circumstances did not exactly match those discussed in earlier Reynolds -type cases. There was no doubt that the subject-matter of the publications was of public interest, but that alone did not mean that it was in the public interest to publish any such allegations irrespective of their truth or falsity. If a defendant was to be spared the burden of proving the truth of such allegations, and to avail himself of a public interest defence, certain conditions had to be fulfilled, because the public interest itself required that some filter be applied to allegations that were liable to damage the reputations of those who were attacked, Reynolds applied. S had not merely reported allegations, he had made allegations of fact.

There was no authority to support the proposition that he could do so to the world at large without having to prove that they were substantially true. As to the newspaper and its editor, there would be circumstances in which such allegations could be reported under the cloak of privilege, provided

  1. they had first taken steps, such as obtaining a response from M in advance of publication or carrying out other corroborative checks.
  2. Moreover, if both sides of the controversy had been fairly and disinterestedly reported, there might have been a reportage defence, Roberts v Gable [2006] EWHC 1025 (QB), [2006] EMLR 23 considered.

In the case of allegations as serious as those made by S, more determined attempts should have been made to give M the chance to comment. No such effort had been made and that was fatal to the first and second defendants’ plea of privilege.

Adam Wolanski and Victoria Jolliffe (instructed by Bindman & Partners) for the claimant. Jonathan Crystal (instructed by Fox Hayes) for the defendants.

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