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Since the 2007 House of Lords case of Jameel, the balance has arguably tipped in favour of responsible journalism and against the libel claimant. The case of the Bent Coppers book provided a neat review of the steps an author or publisher is required to take to qualify for the defence known as ‘qualified privilege’ afforded to responsible journalism. As many readers will know this is essentially the defence based on the argument that the topic in question is in the public interest and the journalist has acted responsibly in communicating the information to the public. It is often referred to as the ‘Reynolds Defence’. This new case has been of key interest to our book publishing readers as it has made clear that this defence is not only available to investigative journalists but that book publishers and authors can also avail themselves of it in appropriate circumstances.
The full title of the book was "Bent Coppers – The Inside Story of Scotland Yard's Battle Against Police Corruption". The claimant, a retired metropolitan police constable, argued that the book would be understood to mean that there were "cogent reasons" to suspect that he had abused his position as a police officer and colluded in a fraud.
The author's sources of information included a taped transcript and a report provided by a confidential source, information about alleged fraudulent entries in informant logs and surveillance tapes, all from police sources. In the course of the Metropolitan Police investigation this evidence had been put before the claimant who had refuted any allegations of corruption. The book did more than simply record the fact of any allegations and the fact that the Claimant has refuted them instead it was a work of investigative journalism.
The first Judge to hear the case rejected the Reynolds Defence because he did not believe that the author had reported the facts fully, fairly and disinterestedly. He was concerned as to the emphasis, or “spin”, put on certain facts which he said was not responsible. In hearing the Defendant’s appeal from this decision the Court of Appeal reviewed the earlier case of Jameel which was not available to the Judge at first instance and summarised the steps in the analysis that a court should undertake in assessing the availability of the Reynolds Defence. Readers may recall that back in 2001 it was thought that the ten criteria set out in the case of Reynolds were necessary hurdles that journalists or authors had to overcome before they could satisfy a court that any given article amounted to responsible journalism. For those that don't have the Reynolds criteria at their fingertips we have set them out in the footnotes to this article. In the Bent Coppers case the Court of Appeal refuted that notion and made it clear that the Reynolds criteria formed part of the relevant considerations but were not to be considered as a series of ten hurdles.
Instead of providing a detailed legal analysis we suggest below a checklist for authors/publishers who might be publishing books or articles of investigative journalism. This checklist is not foolproof, as all cases are sensitive to their own facts, but it should act as a preliminary guideline for those engaging in investigative journalism.
1. Taking the entirety of the article/book, and not just the contentious comments, into consideration is the matter properly one of public interest?
2. Does the article/book conform with standards of responsible journalism? i.e. have you taken the steps that are a responsible journalist would take to verify information and ensure that the article/book is accurate and fit for publication?
3. Have you considered the Reynolds criteria? They are pointers to guide you in assessing whether you conform to the standards of responsible journalism. You need not necessarily satisfy every single point.
4. Have you exercised professional judgment in writing/publishing the article? You should not be penalised for taking a wrong decision on a meaning for which reasonable people might take a different view but you should be able to demonstrate that you have exercised critical judgment.
1 Jameel -v- Wall Street Journal Europe SPRL (No.3) [2007] EMLR 14. 2 This defence was particularly developed in Reynolds -v- Times Newspapers [2001] AC127 3 See Reynolds Criteria |