Wednesday, October 11, 2006

The Albert Reynolds precedent

Today's Wall Street Journal online reports (subs. req'd) that the House of Lords has affirmed the so-called "Reynolds defence" in libel cases and allowed the WSJ to successfully use it in a libel case brought by a UK-based Saudi businessman. The Reynolds defence arose from one in a series of ill-advised legal actions brought by Fianna Fail politicians against Irish and British media outlets; the Reynolds case has echoes of current events in Ireland as it concerned whether he, as Taoiseach, had misled the Dail in events leading to the collapse of his government in 1994, and whether he had corrupt dealings with the lobbyist Frank Dunlop.

The background is that UK libel law has been steadily evolving from the bankruptcy-threat outcomes that, for example, might imperil Private Eye, towards a "public interest" defence closer to what is allowed in the USA. So --

... the Reynolds defence of "qualified privilege", so called after a case brought by the former Irish prime minister Albert Reynolds against the Sunday Times in 1999.

In that case, the Law Lords ruled that the media could publish information, even if it turned out to be untrue and defamatory, provided the public had the right to know it and it was the product of responsible journalism.

Lord Nicolls, who gave the leading judgement, laid down 10 points which courts might take into account when deciding whether to admit a plea of qualified privilege.

They included the seriousness of the allegation, the source, the steps taken to verify it, the urgency of the matter, whether the claimant was asked to comment and give his side of the story, and the tone of the article.


However, the defence had seemed to weaken when George Galloway won a libel case against the Conrad Black-era Daily Telegraph. But it looks like the House of Lords now thinks that the Galloway verdict was over-interpreted -- as should be clear given the apparent recklessness of the Telegraph at the time: there was always the mystery of why the paper was able to find such convenient documents in Baghdad, often already in English, and ready to be deployed against various betes noirs.

Anyway, Galloway or not, the defence is alive and well. The WSJ had published a story in its US and European editions about intelligence monitoring of Saudi businesses in the wake of 9/11, and one named businessman, Mohammed Jameel, sued for defamation. The Journal couldn't produce any sources to confirm its story, because Saudi sources refused to appear and a US source was confidential. But --

The purpose of the story, the Journal argued in Britain's High Court, was to show that Saudi Arabia was cooperating in the international effort to combat terrorism. The paper argued that its inclusion of several prominent Saudi companies was designed to show how serious the Saudi authorities were ...A jury in the original case ruled against the newspaper and damages of £40,000 ($74,000) were awarded to Mr. Jameel and a Saudi company controlled by his family.

In Wednesday's ruling, the Law Lords found that the trial judge had misdirected the jury and applied the wrong legal standard, and entered judgment in favor of The Wall Street Journal Europe. The decision was unanimous.

The Lords' decision recast a 2001 libel decision known as Reynolds vs. Times Newspapers Ltd. that was intended to protect serious investigative journalism on matters of public concern. Their opinion suggested that the previous decision had to date had little impact on the way libel law was applied and therefore needed to be restated.

The Law Lords also said it didn't matter that a judge, with "leisure and hindsight," might have made different editorial decisions than those made quickly in newsrooms. Rather, "the question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information," the decision read. If journalists and editors behave fairly and responsibly, and the information is of public importance, the fact that it contains relevant but defamatory allegations against prominent people won't permit them to recover libel damages, they ruled.


One final note: even as UK libel law now leans a little more towards freedom to publish, there is an evolving focus on privacy rights of public figures that might undo some of the gains. A related problem is that Internet access or even modest circulation of the printed matter have made legislators and courts more willing to assert jurisdiction over media outlets in another country. Relevant example: the Republic of Ireland, where a proposed privacy law seems to extend beyond celebrities wanting a little peace and quiet, to politicians who don't want pesky journalists looking at how their personal and professional lives might be mingling. As noted in this International Herald Tribune/New York Times story --

Michael Kealey, a media lawyer at William Fry in Dublin, said an example of that conflict was on display in Dublin on Friday, when the editor of The Irish Times, Geraldine Kennedy, and the newspaper's public affairs correspondent, Colm Keena, refused to identify a confidential source to a tribunal investigating allegations concerning the prime minister, Bertie Ahern.

"Had the privacy bill been law, the prime minister could have gone to court," Kealey said. "The biggest political story of the last 10 days, which involved private loans during his separation from his wife, would never have seen the light of day"


One difference between the Republic and the UK is that so far, the UK has been more willing to leave the definitional issues to courts. But Michael McDowell, control freak Justice Minister, wants a law. He thus becomes a potentially major headache for UK newspapers.

UPDATE 12 OCTOBER: The Times, not surprisingly, editorialises in favour of the WSJ decision. As, even less surprisingly, does the WSJ itself (subs. req'd).

FINAL UPDATE 7 DECEMBER: The Irish government's proposed Privacy Bill has disappeared.

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