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European IP Bulletin, Issue 29, February - Media

Media

9. George Galloway MP v The Telegraph Group

On 25 January 2006, the Court of Appeal delivered its judgment in George Galloway MP v The Telegraph Group [2006] EWCA Civ 17. In this appeal the newspaper group did not succeed in its bid to overturn a 2004 first instance ruling concerning the defamation by the Daily Telegraph of politician George Galloway.

Galloway had brought an action against the Telegraph Group Ltd for damages for libel on the ground that articles in the Daily Telegraph newspaper’s editions of 22 and 23 April 2003 were defamatory. The author of the relevant articles, reporter David Blair, claimed that, according to Iraqi intelligence documents, Galloway had been in the pay of Saddam Hussein, secretly receiving sums of the order of £375,000 a year, that he had used the Mariam Appeal as a front for personal financial advantage and that he had diverted monies from the oil-for-food programme, in effect depriving the Iraqi people, whose interests he had alleged to represent, of food and medicines.  It also suggested that what he had done was tantamount to treason.

The Telegraph Group Ltd argued that publication of the articles was justified on the basis that the public had a right to know the contents of the documents irrespective of whether or not they were defamatory of Galloway or whether their factual content was true. Nevertheless, the Court awarded Galloway £150,000 in damages.

The Telegraph Group Ltd appealed the ruling of the court of first instance on the following grounds:

• Even if the articles were defamatory, the Telegraph Group maintained that the Daily Telegraph’s coverage of the story amounted to reportage (essentially neutral reporting of attributed allegations, rather than their adoption by a newspaper) and, as such, the Group was protected by qualified privilege - the so-called “Reynolds” privilege (named after the 1999 case of Reynolds v Times Newspapers Ltd [2001] 2AC 127). This can provide a defence for publishers against defamation claims where it can be shown that publication of a story is in the public interest and that it has been reported in a responsible way;
• The claims made in the relevant published articles amounted to fair comment; and
• The £150,000 damages awarded were excessive.

Depending on the circumstances, certain matters must be taken into account in determining whether Reynolds privilege is available as a defence to defamation. These matters include factors such as: the seriousness of the allegation; the nature of the information and the extent to which the subject matter is a matter of public concern; the source of the information; the steps taken to verify the information; the status of the information; whether comment was sought from the plaintiff; whether the article contained the gist of the Plaintiff’s side of the story; the tone of the article; and the circumstances of the publication, including timing. In the Reynolds case, it was emphasised that the courts should above all have particular regard to the freedom of expression and should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion.

In this case, the Court of Appeal also considered a number of decisions of the European Court of Human Rights which examined the balance to be struck between Article 10 of the European Convention on Human Rights (which relates to the right to freedom of expression) and Article 8 (which relates to the right to respect for private and family life). The Court of Appeal found the principles of the relevant Strasbourg jurisprudence of limited assistance in this case as the facts of the Strasbourg cases varied considerably. These cases were, however, of assistance in so far as they identify the correct approach and correct principles to apply (which have most recently been summarised in the case of Cumpana and Mazare v Romania (2005) 41 EHRR 200). They are essentially the same principles identified by the House of Lords in Reynolds, subject to the issue of whether it is fatal to a defence of Reynolds privilege for a defendant to have adopted the statement of others as true.  On the basis that this is not fatal the question in each case is how to balance the freedom of speech contained in Article 10 with the reputation of an individual contained in Article 8. The national court essentially decides where this balance is to be struck and in this case the Court of Appeal did not disagree with the balance struck by the court of first instance.

The Court of Appeal dismissed the argument that the defence of qualified privilege should be available to the Daily Telegraph. The articles were not reporting the contents of the Baghdad documents in a fair or neutral manner, in particular, the documents did not allege that Galloway took money for himself, whereas the articles unequivocally made that allegation. Based on this premise, the Court held that the newspaper had both embraced and embellished the allegations.

The Court also dismissed the Daily Telegraph’s defence of fair or honest comment after concluding that the various statements in the articles and headlines complained of by Galloway were either allegations of fact or, in so far as they were comment, they were based on unproven facts and conduct. Thus, in the absence of either a defence of justification or privilege, the newspaper could not rely on a defence of fair or honest comment.

As to the issue of whether the judge had erred in principle in awarding damages of £150,000 to Galloway, the Court of Appeal held that it would not interfere with the amount awarded due to the seriousness of the allegations and the fact that the award of damages was based on libel that had been found proved.

Therefore, the Court of Appeal dismissed both the appeal on liability and the appeal on damages. This case was decided on its own facts relating to the overall impression given by the Telegraph articles. However, it gives guidance on the factors which will be taken into account when considering when a defence of Reynolds privilege will be available, as outlined above.

10. HRH The Prince of Wales v Associated Newspapers

The High Court in London has granted a temporary order restraining the publication or disclosure of Prince Charles’ private journals pending judgment on the summary judgment application or further order. Copies of the journals, which contained the Prince’s views on the 1997 handover of Hong Kong to the Chinese, had come into possession of the Mail on Sunday.

Prince Charles regularly writes journals of his official visits detailing his personal impressions and private views of his overseas tours. He circulates copies of the journals to members of his family, close friends and advisors. This particular journal was circulated to 13 recipients together with a letter from the Prince of Wales or his personal assistant or secretary in an envelope marked “Private and Confidential”. The Prince of Wales claims that these journals were confidential and protected by copyright which he owns. He claims that these journals were wrongly copied by a person who worked for his household and the copies were removed from his private office and given to the Mail on Sunday through an intermediary.

The paper published extracts of these journals and threatened to continue doing so. The Prince of Wales has applied for summary judgment, which the Defendant has resisted denying the breach of confidentiality and arguing that it is in the interest of the public to know the views of the heir to the throne. The Prince of Wales has a history of causing controversy by voluntarily disclosing to the public his opinions on a range of topics and private lobbying of democratically elected persons on topics of political importance.  It is also alleged that he circulated his journals so widely as to destroy any confidence which might have resided in them.

Mr Justice Kitchin said that at this stage of the proceedings, the Prince of Wales had shown an arguable case that the information contained in the journals is confidential and entitled to protection. He said that simple assertions of confidentiality should not prevail but the Claimant had satisfied him that there was a genuine interest in seeking to prevent the publication of sensitive private information of a confidential nature. Mr Justice Kitchin made an interim order restraining the publication of the journals pending a further hearing of the application.

Breaches of confidentiality in relation to the Royal family have been numerous. Usually the cases have involved their private life. What make this case extraordinary is the Prince’s constitutional role and the political issues discussed in these journals. His comments were not presented in a very diplomatic way and may not have been meant for public consumption, although more recent press comment suggests the Price was adept at leaking such commented when it suited him.

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