To some the all seeing eye of the media is akin to the chilling Orwell creation, Big Brother. With Rupert Murdoch being voted in a Radio 4 poll as more powerful than the Prime Minister and the Chancellor of the Exchequer, even potent and media savvy politicians like George Galloway occasionally need the protection of the law when our “Big Brother” press pass judgment on him.
The problem posed by the so called “responsible journalism” defence created by the House of Lords in the seminal case of Reynolds v Times is that once that defence has been established by a publisher (such as a newspaper) the right of the defamed individual to restore his reputation is lost. In Loutchansky v Times Newspapers, Mr Loutchansky was refused permission even to seek a declaration of falsity in the face of a Reynolds defence to his libel action, a decision which confirmed the absolute loss by the individual of the right to vindication if the responsible journalism defence succeeds. The key issue in the Galloway case is the extent to which the courts will deprive the individual of his or her right to a reputation in order to uphold the competing right of free speech.
George Galloway successfully sued The Telegraph over articles published in 2003 which were based on documents found in Baghdad which indicated that Mr Galloway had received over $300,000 from the former Iraqi regime under the Oil-For-Food programme. The trial judge (Mr Justice Eady) rejected the defence of fair comment because the articles made allegations of fact against Mr Galloway which could not be defended as fair comment. He rejected the Reynolds responsible journalism defence because The Telegraph had not only failed to put all the allegations to Mr Galloway but had substantially embellished them. He went on to award Mr Galloway £150,000 in damages.
The Telegraph’s appeal against the rejection of both of its defences, and the award of £150,000, has today been dismissed. The judgment of the court was given by the Master of the Rolls (Sir Anthony Clarke) who said:
“It appears to us that the newspaper was not merely reporting what the Baghdad documents said, but that, as the judge held, it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi Oil-For-Food programme for personal gain. That was not a mere repeat of the documents, which did not, or did not clearly, make such an allegation. We agree with the judge that, although there were some references to allegations, the thrust of the allegations was that The Daily Telegraph was saying that Mr Galloway took money to line his own pocket. In all the circumstances, we asked whether the newspaper adopted and embellished statements in the Baghdad documents in the affirmative.”
The Court of Appeal also considered whether the principles in the House of Lords judgment in Reynolds were consistent with the relevant Strasbourg jurisdiction, and also whether they were consistent with the competing rights set out in Article 8 (the right to respect for private and family life) and Article 10 (freedom of expression). Citing the judgment of the European Court in Cumpana and Mazare v Romania on the issue of striking a balance between those articles, Sir Antony Clarke MR not only stressed the importance of this balance, but also confirmed that the right to reputation was one of those rights enshrined in Article 8:
“the crucial paragraph in that judgment … stresses the importance of the national courts striking a fair balance between the protection of freedom of expression enshrined in Article 10 and the protection of a person’s reputation enshrined in Article 8 as an aspect of private life.”
Article 10 itself states that freedom of expression is subject to certain restrictions. One of those expressly provided for is the protection of reputation. As Lord Nicholls said in Reynolds, if the reputation of public figures is unjustifiably damaged, then not only are they unfairly the losers, so is society as a whole. It is therefore vital that the courts only deprive an individual of their Article 8 rights when journalists have demonstrated a high degree of responsibility in publishing defamatory material which they are unable to prove, even on a mere balance of probabilities, is true.