Bulletins Story: THE RIGHT TO LIBEL FURTHER EXTENDED:  CHARMAN v ORION

Date: 24.10.2007

In a judgment handed down on 10 October, the Court of Appeal overturned a decision of Mr Justice Gray rejecting a defence of qualified (Reynolds style) privilege for a libel claim concerning a book entitled “Bent Coppers”.

The book claimed there were cogent grounds to suspect that the claimant (a former detective) had abused his position as a police officer by colluding with Geoffrey Brennan in a substantial fraud for which he and another officer received bribes of £50,000.

The Court of Appeal unhesitatingly rejected the additional defence of “reportage” but found that the book did fall within the bounds of responsible journalism, finding in particular that Mr Justice Gray had failed to consider the allegations made in the book against the claimant in the context of the book’s overall subject matter and had failed to give sufficient weight to the author’s editorial judgement – his honesty, expertise, painstaking research and analysis.

Although the judgments cover a number of grounds, the most important is the issue of responsible journalism, this being the first Court of Appeal decision since the case of Jameel v Wall Street Journal. Lord Justice Ward’s leading judgment stressed that issues of public interest and responsible journalism had to be assessed in the context of the book or article as a whole. He also stressed the importance of fairness as an element of the “responsible journalism” test, and the importance of factoring in the professional judgement of the journalists in this test, which was not intended by the House of Lords to place a heavy burden on the media in performing its function.

Lord Justice Ward stressed that the Reynolds defence must be recognised as an attempt by the House of Lords to alter the balance between the rights afforded by Articles 8 and 10 of the European Convention on Human Rights more towards the rights of the press and authors to publish stories of genuine public interest. He noted the series of judgments from the European Court of Human Rights which were increasingly supportive of the right of free expression. After reviewing the ten stage test set out in Reynolds, he concluded that the role of the court was to assess whether the book or article taken as a whole struck a fair balance between the right of free expression and the right of the individual to his or her reputation. He also noted that in so doing the court should allow no greater impingement on the right of press freedom than is necessary to maintain that balance.

Lord Justice Ward confirmed the logical extension of the Reynolds defence to the authors and publishers of books that had been foreshadowed by Lord Justice Hoffman in the Jameel case, although he stressed that since book publishers are under less time pressure, greater care will be expected of them. He also alluded to the decision of the Privy Council in Bonnick v Morris where the court stated that it must take into account the journalist’s intended meaning (if reasonable) when assessing the responsibility of his conduct in publishing the article, observing that this was now authoritative having been cited in Jameel without disapproval.

The clue to the writer’s intention on the issue of defamatory meaning may in this case have been in the title of the book, and the temptation on the part of an author to deny the intention to defame will be strong when it might deflect legal liability for his book or article. But the admission of such evidence is difficult to reconcile with the inevitable process of “legalling” that all books and articles undergo before publication, after which the writer is left in no doubt as to what the objective meaning is of his or her words before publication takes place.

The uncomfortable issue which is normally ignored in these judgments (and this one is no different) is the unfortunate situation faced by either Mr Jameel or (ex) Detective Constable Charman. Assuming they are innocent (which is still presumed in the absence of proof of guilt), it is difficult to see the public benefit of the claimant’s right to reputation being taken absolutely from him with the general public by the same stroke being robbed of any means of learning whether the allegations at issue are true or false.

The Court of Appeal judgments indicate that the defamatory meaning ascribed to the book by Mr Justice Gray was one which might well have been capable of justification. Lord Justice Sedley’s judgment constituted a detailed study of the evidence which could have served as the basis on which to answer the question of whether the allegations in the book were ‘justified’. This is surely a better way of ‘balancing’ these two fundamental rights, which in the Reynolds defence is really a euphemism for robbing the claimant of his Article 8 right to a reputation and the public of their Article 10 right to learn if the allegations at issue bear judicial scrutiny.

Jonathan Coad

Defamation & Privacy

See Also:

REYNOLDS AND PUBLIC INTEREST:  WHAT ABOUT TRUTH AND HUMAN RIGHTS?

REYNOLDS DEFENCE IS REVIEWED BY THE HOSUE OF LORDS:  JAMEEL v WALL STREET JOURNAL

COURT OF APPEAL HOLDS THE LINE AGAINST "BIG BROTHER" ON INDIVIDUAL RIGHTS: GALLOWAY v THE TELEGRAPH

e-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.

<< back to ebulletins