A new day in the U.K.

Britain’s highest court has handed down a watershed ruling that allows the media to better defend ‘responsible journalism’ against libel claims.

From the Winter 2007 issue of The News Media & The Law, page 24.

By Catherine Spratt

London’s reputation of being “the libel capital of the world” may tarnish somewhat thanks to a new ruling from Great Britain’s highest court that should make it easier for journalists and media companies to defend themselves when they are sued for libel.

The United Kingdom’s plaintiff-friendly libel laws have made it a hot destination for so-called “libel tourists.” Many plaintiffs from overseas have chosen to sue in British courts even when one or both parties are based in another country.

But Britain’s House of Lords, the highest court in the country, handed the media a major victory in October in a landmark decision that will have a significant impact on libel lawsuits in Britain.

In Jameel v. Wall Street Journal Europe, the court made clear that if a media defendant can show that an article or broadcast is a matter of public interest and a product of responsible journalism, a plaintiff cannot recover libel damages.

The judges, called law lords, ruled that the article in question — a story about the monitoring of Saudi bank accounts for potential terrorist activity after the Sept. 11 terrorist attacks — was of public interest and written responsibly. As a result, the plaintiff, a Saudi billionaire who was named in the article, was unable to recover damages for libel.

Movie stars and other celebrities will still have an enormous advantage over media defendants when suing in Britain over frivolous tabloid gossip stories. But under Jameel, journalists writing on serious topics should have a better chance of successfully defending themselves when sued for libel.

Fiona Campbell, whose law firm represented the Journal, called the case “a star-spangled victory for reporting on matters in the public interest. Most people see it as a resounding victory for the media.”

Britain’s libel laws have traditionally favored the plaintiff, while libel laws in the United States have long been friendlier to media defendants.

Truth is a defense under both sets of laws. But in the United States, thanks to the seminal New York Times v. Sullivan case, a public official or public figure can recover damages for libel only when defamatory statements are made with “actual malice” —
the knowledge that a statement is false, or with reckless disregard for whether it is false. The burden is on the plaintiff in the United States to prove that the defendant acted with actual malice.

In Britain, media defendants have the burden of proving that the statements made are true. British courts and the legislature have consistently decided against altering British law to create a malice standard more in line with American defamation laws.

But thanks to Jameel, media defendants now will be able to offer a public interest defense.

Campbell said, “Even if truth cannot be absolutely verified or even if there are errors,” the media may now be able to prevail in a libel lawsuit.

Claiming a privilege

One defense long available to defamation defendants in Britain, even before Jameel, was a qualified privilege applicable when the defendant had a duty to tell something to an appropriate person who had a valid interest in knowing. For instance, an employee who suspects that a co-worker is stealing would be protected in a defamation lawsuit if she told her employer about her suspicions, but not if she gossiped to her co-workers.

However, the media’s attempts to use the qualified privilege as a defense were usually unsuccessful. For example, in the 1990s, numerous newspapers were sued over stories about police corruption. Many were smaller newspapers that were forced to settle out of court for financial reasons.

Some papers did go to court and claim the qualified privilege applied. In the 1997 case Bennett and Others v. Guardian Newspapers Ltd., the Guardian argued that the media had a duty to inform the public of the corruption and the public had an interest in knowing of the corruption.

But in a blow to investigative reporting, the court ruled against the Guardian, saying that the newspaper had no duty to inform the public of such events and that thus the privilege did not apply.

Under Jameel, newspapers in similar situations today will have a much stronger chance of winning their cases.

Caroline Kean, a litigator at Wiggin LLP, a media law firm in London, said: “The Jameel type of public interest is best described as a son of qualified privilege. It springs from the old public interest defenses but is a new sort of defense in its own right.”

Seven years before Jameel, the House of Lords handed down a decision that seemed to provide the media with greater protection.

In Reynolds v. Times Newspapers Ltd., the court ruled that when the media has a legitimate duty in reporting matters of public interest, a news organization may be able to successfully defend itself against libel charges. The court listed a number of criteria that could be used to judge whether this standard was met.

These criteria include the seriousness of the allegation, the steps taken to verify the information, the urgency of the matter, whether the article contained the gist of the plaintiff’s side of the story, whether comment was sought from the plaintiff, and the circumstances of the publication, including the timing.

But the lower courts did not apply this ruling in a way that was favorable to media defendants.

Kean said that in virtually every case, the application of the Reynolds factors led to a situation where the court was “putting the journalist on trial.”

Rather than using the criteria as flexible guidelines, the lower courts were applying them as a checklist that must be met in order to use the defense.

Alistair Brett, legal manager of Times Newspapers in London, wrote that when Reynolds was decided, “it was thought to be the dawn of a new age in public interest reporting.”

“As long as the subject matter of an article was in the public interest . . . all the journalist had to do was prove that he had behaved responsibly in putting the article together,” Brett wrote in the Times of London. “But it was not to be. Ever since then the libel judges at the Royal Courts of Justice have imposed impossible standards on journalists and thrown out case after case after applying the law as it used to be.”

Forced to censor

In Jameel, the court established that the lower courts had been applying Reynolds incorrectly.

Lord Bingham wrote of the Reynolds factors that the court “intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on a privilege.”

Jameel makes clear that the Reynolds factors should be applied in a flexible manner. Newspapers do not have to meet all of the criteria in order to successfully use the defense — they are meant to be used as pointers, not requirements.

The court held that courts should consider whether the subject matter of the article was a matter of public interest and whether the media organization acted fairly and responsibly in gathering and publishing the information.

Celebrity magazines reporting on the latest gossip about an actor’s affair, for example, will not be able to use this defense. The Jameel opinion was meant to protect serious, responsible journalism on matters of public importance.

As Baroness Hale wrote: “There must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public —
the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it.”

In a significant victory for the media, the judges said that the court should consider the article as a whole and not isolate the defamatory statement.

“Allowance must be made for editorial judgment,” Lord Hoffman wrote. “If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defense. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.”

Kean said that the Jameel decision “allows for more pressure in the newsroom” and establishes a more reasonable way of evaluating journalistic practices.

The decision is good news for American journalists or publishers who might be sued in the U.K.

Stuart Karle, an attorney for Dow Jones & Co., which owns the Journal, said, “Because U.S. publications can be read on the Internet, there can now be some additional comfort” that when articles are read in England “if you did a good and careful job, you’re set legally.”

Many U.S. media outlets have reporters and distribute written publications in the U.K. and thus are particularly vulnerable to lawsuits there. But thanks to Internet publication, even those with few or no assets or printed publications in the U.K. can be sued in British courts.

Karle said the new British standard “offers editors the ability to cover difficult stories of public importance and not have to worry about being second-guessed by judges about essentially every decision on reporting.”

In the U.K., “lawyers for the media were acting as censors because they had to,” Karle said. “This puts the authority back in the hands of editors and journalists, who are the right ones to be making these decisions in a free society.”