Further guidance for journalists on qualified privilege: English v The Insurance Insider

In a judgment handed down in the High Court today Mr Justice Gray found that the insurance industry trade magazine, The Insurance Insider, failed in its plea of Qualified Privilege because the journalist in question had not acted responsibly according to the ten-point test set out by the House of Lords in Reynolds v Times Newspapers Ltd.

The case concerned allegations of impropriety made against two claimants who were represented by The Simkins Partnership. They were both well known and established members of the insurance community. The allegations were contained in legal papers which had been leaked anonymously to the offices of The Insurance Insider. However, there was little doubt in the mind of the judge that the documents had been supplied by the individual making the allegations with a view to putting pressure on the claimants. The claimants sued when the allegations were published in the October 2000 edition of The Insurance Insider, and on the magazine’s website.

The defendant journalist/editor claimed only to have reported allegations made by someone else, and to have taken seven specific steps to establish whether there was any basis in the allegations. Six of those steps were rejected by the jury, who also found that the manner in which the allegations were reported was defamatory of the claimants. The judge commented that the information was clearly tainted as its source had an obvious axe to grind. Despite this, very few steps were actually taken by the journalist to verify the allegations according to the jury’s findings, and in particular no effort was made to obtain comment from the claimants.

The judge concluded that given the seriousness of the allegations, the steps taken by the journalist to check them before publication were wholly inadequate. Although the judge commented that it was not an absolute requirement to obtain comment from the subject of the article, he clearly considered that it would normally be a requirement of “responsible journalism”. The jury awarded the claimants £10,000 each by way of damages.

Journalists will have to be careful when engaging in what is commonly known as “reportage”, even when allegations are reported neutrally. The other disciplines which were set out by Lord Nichols in the Reynolds case must still be applied if a journalist is to benefit from the new media defence of Qualified Privilege. The rigorous standard of good journalism stipulated by Mr Justice Gray in his judgment can serve only to improve the quality of journalism which the right of freedom of expression preserves.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.