MEDIA LAW

Responsible Journalists RequiredLoutchansky v Times Newspapers Limited & Ors, Court of Appeal, 5 December 2001The defence of qualified privilege seems to have been as affected by the pull of recent cases as the tide is subject to the pull of the moon.

The tsunami of the decision in Reynolds v Times Newspapers was followed by a set of lesser waves until Loutchansky crashed down on The Times, denying the newspaper the defence of qualified privilege.

But before Christmas, another legal wave hit the shores.

While rejecting the other four appeals brought by The Times, the Appeal Court held that the first- instance judge in Loutchansky had 'applied the wrong test' in considering whether there was a duty to publish articles to the world at large (see page 30).

It clarified that test and referred the matter back for the first-instance judge to reconsider the findings of fact in light of their clarified standard.

The common law defence of qualified privilege has historically afforded protection to a non-malicious defendant who has libelled another on an occasion of privilege.

The categories in which it applies are not set in stone but the defence will generally be available where the maker of the defamatory statement had a duty to publish the information and the recipient had a corresponding interest in receiving it - known as the duty-interest test.The Law Lords in the case of Reynolds (see [1999] Gazette, 17 November, 38) extended the defence to much rejoicing by the media, holding that they could, in certain circumstances, avail themselves of it.

When reporting on matters of public interest - provided the publisher had complied with a number of good practice guidelines, set out in Lord Nicholls's (non-exhaustive) ten-point test, evidencing responsible journalism - the qualified privilege duty-interest was likely to be satisfied.

As such, a publisher could avail itself of the defence where the article proved to be wrong (or could not be proved to be right), on the basis that it had a duty to publish the information to the public which had a legitimate and corresponding interest in receiving it.

The extended defence was regarded by media organisations and defendant practitioners as a much-needed weapon in what they view as a poorly stocked armoury in the libel war.

But spirits fell when, in March last year, Mr Justice Gray ruled that the defence of qualified privilege was not available to the defendants in the Loutchansky case.

Noting the 'compelling reason' why the appeal should be heard, namely 'what standard the court should apply when deciding whether there was a duty to publish defamatory words to the world at large', Mr Justice Gray gave leave to appeal his decision.The Times' article in dispute had accused Mr Loutchansky of various serious offences, including money-laundering and involvement in a Russian criminal organisation.

In its defence, the paper did not seek to justify the allegations but to rely on qualified privilege.

But Mr Justice Gray ruled that the defence was not available to the paper.

In assessing the duty required to give rise to the defence, Mr Justice Gray said: 'I take that form of duty...

to be a duty such that a publisher would be open to criticism if he failed to publish the information in question.' The Court of Appeal said that Mr Justice Gray's decision 'followed upon a masterful analysis of a great deal of material...' However, it was this one paragraph that sank his judgment.

The Appeal Court judges found that although it was 'unexceptionable' to use the test as a cross-check, it was not acceptable to rely on it as the only means of deciding duty.

There would be circumstances when one publisher would decide to publish a story yet another, on the same facts, would not.

Both could be acting responsibly.

To hold that a publisher could only rely on the defence where he would be legitimately criticised for not publishing the material, 'would be to impose too stringent a test.'The Court of Appeal clarified quite simply, that: 'The standard required is that of responsible journalism'.The judges also set out various considerations that they considered likely to feature prominently in a court's thinking in deciding whether that standard had been satisfied:l If the publication is held to be privileged then that, to all intents and purposes, will pre-empt a finding of malice.

The court will find it difficult to rule that the journalist and editor acted responsibly yet at the same time maliciously.l The standard should not be set too low as this would 'inevitably encourage too great a readiness to publish defamatory matter.

Journalists should be rigorous, not lax, in their approach.'l A too high standard 'would deter newspapers from discharging their proper function of keeping the public informed.'l In determining whether or not any particular article should attract qualified privilege, the court must bear in mind the likely impact of its ruling not only on the case itself, but also on the media's practices generally.

The defence should not deter future publications of truthful information.Although it is founded on duty and interest, the Court of Appeal found the Reynolds privilege to be a 'different jurisprudential creature from the traditional form of privilege from which it sprang'.

The interest is 'that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed...' While the corresponding duty on the journalist (and equally his editor) 'is to play his proper role in discharging that function.

His task is to behave as a responsible journalist.' But while The Times may have won the battle, it does not necessarily follow that it will win the war.

The first-instance judge must previously have found that the newspaper would not have been open to legitimate criticism if it had not published the piece.

Applying the now clarified test to the findings of fact already made, he may find that it did not act in accordance with the standards of responsible journalism.

So, the tide has turned again, back to the principles of Reynolds.

A publisher 'can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly.' While the details in any particular media qualified privilege case may be complex, one must keep the Court of Appeal's simple words in mind: 'Unless the publisher is acting responsibly, privilege cannot arise.'By Amber Melville-Brown, Schilling & Lom and Partners, London