The law of libel has long struggled with the question of what should be the effect of the publication of a denial by an individual who has been the subject of defamatory allegations. Unlike many other jurisdictions, in the UK the mere repetition of a defamatory statement can bring liability in libel, a principle known as the ‘Repetition Rule’. There is some tension with European case law on this subject, but a challenge by the newspaper to the Repetition Rule in the appeal by Rosalyn Mark in her action against Associated Newspapers concerning its account of the disputed publication of extracts of Ms Mark’s book was an occasion for the Court of Appeal to affirm the Rule.
The question then arose as to the effect of the publication of a denial by Ms Mark of the allegations published in the Daily Mail. Is that a ‘sufficient antidote’ to rid the publication as a whole of its otherwise defamatory meaning? The effect of a denial can either be to nullify the defamatory sting altogether (which the Court of Appeal made clear would rarely be the case), or to constitute one of the building blocks of the new media defence of Qualified Privilege.
In delivering judgment Lord Justice Simon Brown said he found it ‘very difficult to conceive of circumstances in which the mere printing of a denial could of itself be said to constitute an antidote sufficient to neutralise the bane.’
The legal impact of publishing a denial will depend very much on the precise wording of the article in question. But it still appears that the practical effect of the Repetition Rule has been retained in that the mere publication of a denial is not likely to save a media publisher from having to find some other defence to the defamatory publication at issue.
As Sir Simon Brown pointed out, quoting a portion of the leading judgment in Reynolds v. Times Newspapers (which established the new Qualified Privilege defence), one element of the ten factors which the court laid out in that case (‘whether the article contained the gist of the claimant’s side of the story’) can play a role in persuading the court that the publication as a whole should enjoy the defence of Qualified Privilege. However, even publishing the gist of the claimant’s side of the story, let alone the publication of a bare denial, will not have extinguished the defamatory meaning.
The difficulties faced then by the media in publishing defamatory allegations about individuals worthy of public interest remain, and the media must look to the protection provided by such cases as Reynolds and Loutchansky in order to establish that their publication of such allegations is in all the circumstances ‘responsible’.