Reportage defence could be vital

March 13, 2008 — Comment

Written by Frances Webber

In February 2008, the House of Lords upheld an Appeal Court ruling made last summer in favour of the anti-fascist Searchlight magazine, which has important implications for anti-racist campaigners.

‘Searchlight’ had carried articles throughout the spring and summer of 2003 reporting with some glee on the faction fighting within the BNP and allegations and counter-allegations arising from the party’s spring rally. In an article in the October 2003 issue entitled ‘News from the Sewers’, Gerry Gable reported on an opposing faction’s allegations of theft and violence against Christopher Roberts, the BNP’s London organiser, and his brother Barry, both of whom have stood as BNP candidates in general elections. The Roberts brothers sued Searchlight magazine, its editor and Gerry Gable for libel. They defended the action on the basis that activities of prominent members of a political party are always a matter of public interest and that they were merely reporting the allegations without adopting them, thus giving them a good defence under the recently emerging reportage doctrine. This defence was accepted by the High Court and by the Court of Appeal. The Court of Appeal agreed that the disputes within the BNP were a matter of public interest, the article did not adopt or endorse the allegations and it was, in all the circumstances, a piece of responsible journalism, all of which were elements important to the reportage defence. The House of Lords dismissed the Roberts brothers’ petition of appeal, which had argued that media reporting allegations of criminal behaviour must always obtain verification. The rejection of the appeal has established reportage, or responsible journalism, as an important defence.

Commenting on the verdict, Gerry Gable of Searchlight told IRR News:’There are two important lessons here. One is that journalists carrying out investigations, not only into the far Right, its leaders and hard line activists, must do so in a really professional way and secondly they have to be prepared to find the support of the very best lawyers to stand up for them, which is what happened in our case. We have achieved a victory for all decent journalists and the profession should be thankful that Searchlight stood firm. Whilst the case has been widely reported in law journals both here and abroad, those of us who have been members of the NUJ are bemused at the silent treatment we are getting in the union’s journal the Journalist. We would have thought they would be shouting our victory from the rooftops.’

Until this judgement, news media reporting allegations made by others were always at risk of a successful libel suit, since orthodox libel law had held that repeating a libel, even without adopting or endorsing it, was no defence to a libel action. The only defences were justification, where the truth of the allegations had to be proved, fair comment on a matter of public interest, which protected only comment and not imputations of fact, or qualified privilege, which protected statements of fact where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.

Changes in libel law

But the law has been developing, albeit painfully slowly. In 1993 the House of Lords began the process of liberalising libel law, holding that central and local government organs should not be able to sue for libel.[1] In 1999, in a case brought by former Taoiseach Albert Reynolds against the Sunday Times,[2] they declined to widen the defence of qualified privilege to cover all reporting of political matters, but accepted that the fundamental constitutional right of freedom of expression would sometimes be more important on occasion than the protection of the reputation of politicians. Lord Nicholls set out ten factors which would be relevant in deciding if the publication of factual statements which could not be proved would attract the defence, including 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; how reliable the information was; whether publication was urgent; whether comment was sought from the subject of the allegation; whether the article contained the gist of that person’s side of the story; the tone of the article (‘A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact’); and the circumstances of the publication, including the timing. This list is still important in establishing a defence to libel.

It was in a 2002 case involving a split in a Saudi exile organisation in the UK[3] that the reportage defence was first coined, to protect the reporting by a London Saudi paper of what one faction was saying about members of the other, which the court held was a matter of legitimate public interest.

The reportage defence, according to the judges in the Searchlight case, is that a journalist has a good defence to a claim for libel if what he or she publishes, even without an attempt to verify its truth, is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly other kinds of dispute. The information must be in the public interest, and the thrust of the report must be the fact that the allegations were made. The protection will be lost if the journalist adopts the report or fails to report the story in a fair, disinterested and neutral way.

The importance of the defence

Anti-racist campaigns are in the business of repeating allegations made by those they campaign for, whether they are prisoners alleging racist bullying or violence by prison guards, asylum seekers alleging brutality or racist ill-treatment by immigration officers or private sector sub-contracted escorts, or school students alleging racist exclusion policies. Clearly, the reporting of allegations such as these, involving the way government agencies and the private sector behave towards vulnerable minorities, is very much in the public interest. But such allegations are generally denied, and they tend to be unprovable. In addition, there are often counter-allegations of disruptive or violent behaviour. It is frequently problematic for anti-racists to report specific allegations for fear of a libel suit. What the Court of Appeal has now accepted is that responsible journalism in reporting matters of legitimate public concern should not be penalised.

It is not clear how wide the defence goes – in both the Saudi case and the Searchlight case, there were two political factions, each making scurrilous allegations about the other. Whether the principle behind these cases can be extended to protect those who honestly report allegations of misconduct outside this framework is still not established. But it certainly seems logical to assume that, provided anti-racists follow the guidance given by the Court of Appeal and write up allegations reasonably and fairly, indicating that they raise matters of concern without asserting their truth, and avoiding inflammatory or unfair comment, they should be protected by the reportage defence from successful libel suit. In turn, this should discourage the use or threat of libel actions by the powerful to silence honest reporting.

Related links

Searchlight magazine

Download the judgement (pdf file, 368kb)

[1] Police officers have faced various charges in connection with the deaths of Joy Gardner, Christopher Alder and Mikey Powell in police custody. In all three, the officers involved were acquitted of all charges. With numerous other Black deaths in custody the Crown Prosecution Service has decided there was not not enough evidence to prosecute. The Hounding of David Oluwale is on at the West Yorkshire Playhouse until 21 February 2008 and the travels to: Birmingham Repertory Theatre (25-28 February); Liverpool Playhouse (3-7 March); The New Wolsey Theatre, Ipswich (11-14 March); Hackney Empire (24-28 March); Northcott Theatre, Exeter (17-21 March) and Nottingham Playhouse (31 March-4 April).

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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