Law Lords open up public debate: good news for investigative journalists

The House of Lords has upheld freedom of speech over a public person’s reputation in a precedent-setting defamation case.

In Jameel v The Wall Street Journal Europe, a billionaire car dealer brought proceedings for a story that his company bank accounts had been monitored by the Saudi Government at the request of the US to ensure no money was passing into the hands of terrorists or groups that supported terrorism.

Mr Jameel, unsurprisingly, said that the story defamed him and his company (meaning it would lower his reputation in the eyes of other people and cause the company financial harm).

The newspaper defended that claim not on the basis that the allegations were true (this was impossible for national security reasons), but that publication of them was necessary in the public interest.

Mr Jameel succeeded in both the High Court and the Court of Appeal and the Journal was ordered to pay £40,000 in damages.

The key question in the appeal to the Lords turned on the application of the so-called Reynolds defence, which extended the defence of qualified privilege to situations where the media had commented on issues of public interest (such as, for example, in the New Zealand case of Lange v Atkinson, over a former prime minister’s performance in office) provided the newspaper had engaged in "responsible journalism". (Albert Reynolds, a former prime minister of Ireland, unsuccessfully sued the Sunday Times in 1990s.)

Qualified privilege had previously been a narrow defence available, for example, to enable people to speak freely when giving employment references.

In Reynolds, Lord Nicholl had set out 10 key points that were relevant to assessing what responsible journalism was but they had seldom been tested beyond the High Court in the UK and looked like a high hurdle for journalists to get over.

Lord Hoffman though said that the article about Mr Jameel was the perfect example of journalism that should be protected by the expanded qualified privilege defence. It was "a serious contribution in measured tone to a subject of very considerable importance".

Lord Hoffman was satisfied to make the defence available even to seriously defamatory allegations provided they "made a real contribution to the public interest element in the article".

In an about-turn from some recent decisions, the Lords said they were not keen to probe too deeply with "leisure and hindsight" into editorial decisions. Baroness Hale said "we need more such serious journalism in this country and our defamation law should encourage rather than discourage it".

Although New Zealand courts are not bound by decisions of the House of Lords, the Jameel decision will undoubtedly prove very persuasive in future defamation proceedings and should embolden the investigative media.

The important point for the media is that the Reynolds check-list for responsible journalism is really a list of examples rather than a list of boxes for a journalist to tick. Responsible journalism really requires acting fairly and responsibly rather than a narrow or pedantic appraisal of every action taken by a journalist or editor.

It is worth noting that the Lords were obviously impressed by the public interest element of the article and that remains the primary hurdle for the media to establish: that the story involved a matter important to the public, rather than something merely salacious, sensational or trivial.

It is also interesting to remember Mr Jameel’s perspective. He was quoted as saying that all he ever wanted from the case was to prove the allegations against him were untrue.

This decision demonstrates that when defamatory allegations are made concerning a matter of significant public importance, it may be unwise for the offended party to seek vindication through a defamation proceeding: where the truth lies on matters of public importance may have to be fought out in the media and not the courts.

John McKay is a partner and Justin Graham is a senior solicitor at Chapman Tripp.

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