The judges of the House of Lords (shortly to become the Supreme Court) have issued a landmark decision that will free investigative journalism from threats of libel. They have ruled in favour of a public interest defence for defamations contained in important stories, and this defence can only be lost by editors who act irresponsibly. This decision will bring English law more into line with the freedom enjoyed by the U.S. media to responsibly publish allegations about public figures.
The ruling comes as the result of an appeal by The Wall Street Journal Europe against a High Court judge’s decision, supported by three Court of Appeal judges, that it should pay £40,000 damages to a billionaire Saudi car dealer, Mohammed Jameel (whose family owns Hartwell Motors in Oxford) over a 6 February 2002 front page story (“Saudi Officials Monitor Certain Bank Accounts”) that bank accounts associated with a number of the most prominent Saudi citizens, including Mr Jameel’s family and its businesses, had been monitored by Saudi authorities at the request of U.S. authorities so as to ensure that no money was provided either intentionally or unknowingly to support terrorists.
The Wall Street Journal Europe had published the Jameel name, amongst others, not to accuse the plaintiffs in this case of terrorist involvement, but to show that the Saudis were co-operating with the U.S. in the war on terror by agreeing to monitor the bank accounts of some of their most powerful and wealthy citizens. The newspaper could not prove the truth of this story because its sources in Riyadh were afraid of reprisals from Saudi authorities if they testified, although their information had been confirmed in Washington through a confidential source within the U.S. Treasury who also could not be identified.
The trial judge, Eady J, ruled that publication of the story was not in the public interest because it breached an agreement between the U.S. and Saudi government to keep the monitoring secret. He applied a long-standing English legal rule that the defamation could only be defended if there was an urgent moral duty to publish it.
The Law Lords, however, ruled that the media were not bound by government secrecy: “It is no part of the duty of the press to co-operate with any government, let alone foreign governments, whether friendly or not, in order to keep from the public information of public interest the disclosure of which cannot be said to be damaging to national interests.” [paragraph 142]
They went on to rule that The Wall Street Journal Europe had been entitled to publish the story, despite its defamation of Mr Jameel, to show the extent of Saudi co-operation on the war on terror. The judges said that where the topic of a media investigation was of public importance, relevant allegations that could not subsequently be proved true should not attract libel damages if they had been published responsibly. The media was entitled to publish defamatory allegations as part of its duty of neutral reporting of news, or if, after investigation, they were believed to have substance and to raise matters of public interest.
The five Law Lords were unanimous in their ruling. The leading judgement was given by Lord Hoffman, supported by Lord Scott and Baroness Hale, and was intended to remove the risk that had hitherto attended newspaper investigation into matters of public concern “which could be construed as reflecting badly on public figures” [paragraph 38]. Lord Hoffman said the article was a perfect example of journalism for which the public interest defence should be available.
He said: “It is for the judge to apply the test of public interest. But this publication can easily pass that test. The thrust of the article as a whole was to inform the public that the Saudis were co-operating with the U.S. Treasury and monitoring accounts. It was a serious contribution in measured tone to a subject of very considerable importance.” [paragraph 49]
He went on to say that although it could not be proved true, “In the nature of things, the existence of covert surveillance by the highly secretive Saudi authorities would be impossible to prove by evidence in open court. That does not necessarily mean that it did not happen.” (paragraph 42) The newspaper was entitled to report even serious defamations against individuals, so long as they “made a real contribution to the public interest element in the article” [paragraph 51].
The ruling also said that “judges, with “leisure and hindsight” should not second-guess editorial decisions made in busy newsrooms”. Although the judges in the lower courts had said that Mr Jameel should not have been named, but rather hidden behind the phrase of “a prominent Saudi businessman”, the Law Lords disagreed [paragraph 52]: “The inclusion of the names of large and respectable Saudi businesses was an important part of the story. It showed that co-operation with the U.S. Treasury’s request was not confined to a few companies on the fringe of Saudi society but extended to companies which were by any test within the heartland of the Saudi business world. To convey this message, inclusion of the names was necessary. Generalisation such as “prominent Saudi companies”, which can mean anything or nothing, would not have served the same purpose.”
Lord Hoffman concluded by stating that “the question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information” (paragraph 54). If the reporter and editor do behave fairly and responsibly, and the information is of public importance, the fact that it contains relevant but defamatory allegations against prominent people will not permit them to recover libel damages.
Baroness Hale said, “We need more such serious journalism in this country and our defamation law should encourage rather than discourage it.” [paragraph 150]
Geoffrey Robertson QC, author of the textbook Media Law, who argued the case for The Wall Street Journal Europe, said, “The decision provides the media in Britain with an increased freedom to publish newsworthy stories. This is not a license for irresponsible journalism: It frees serious investigative journalism from the chilling effect of libel actions, so long as the treatment is not sensational and the editorial behaviour is responsible. It will enable, and indeed encourage, editors to place more information into the public domain than at present. The decision is an important step in moving freedom of speech closer to that enjoyed by the U.S. media under the First Amendment.
“The ruling also frees investigative journalists, authors and broadcasters to publish and defend stories without danger to their sources, especially sources at risk of human rights abuse. The media – the fourth estate – has tended to be reactive rather than proactive. This decision should usher in a new role for the media, enabling authors and journalists to make a genuine contribution to public knowledge rather than parroting back what they are told, often in partisan fashion, by police or politicians.”
Mr Stuart Karle, the general counsel for The Wall Street Journal, said, “We welcome the decision. For more than four and a half years The Wall Street Journal Europe has believed that this was a serious article produced by rigorous journalism under difficult conditions on an issue of great public importance. The Lords’ decision recognizes the effort and care with which the Journal’s reporters and editors produced the story, and the importance of giving news organizations an incentive to produce serious journalism on compelling subjects of public concern without the risk of nitpicking and second guessing by courts years later.”
Mr Paul Steiger, managing editor of The Wall Street Journal, said “Quality journalism wins out. The Wall Street Journal has long championed the right of its reporters and editors to deliver unbiased facts to its readers without fear of prejudice or recrimination. The ruling in this case supports the importance of the kind of investigative journalism for which the Journal is renowned around the world.”
FSI partner Mark Stephens, solicitor for The Wall Street Journal Europe throughout the case, said, “The costs and the risks for the Journal Europe in taking test cases like this one all the way to the House of Lords are heavy, but in this case it was extremely worthwhile and has set a new standard for public interest reporting. For too long in the hands of judges hostile to the spirit of Reynolds, they have treated Lord Nichols factors as ten tripwires”.
Mark Stephens went on to say, “I sincerely hope that the English media will now take up Baroness Hale’s suggestion that Britain needs more high quality investigative journalism, as following this decision it now has a defamation law that encourages, rather than chills, this responsibility of the media."
ends.
For further information on this press release, please contact:
Mark Stephens
Finers Stephens Innocent
Tel: +44 7831 115000
Email: MStephens@fsilaw.co.uk
Stuart Karle
Dow Jones & Company
Tel: +1 212 416 2164 or +1 917 865 6371
Email: stuart.karle@dowjones.com
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