Media law

Hitting the right tone

How many of us can recall our parents' retort when we protested at an unexpected chastisement: 'It's not what you said, it's the way that you said it'? Of course, sometimes we had no idea that the tone we had used would cause offence.

But at other times we knew full well that while what we were saying was fairly innocuous, the tone was deliberately chosen to cause as much offence as possible.

It would appear that the judiciary is not adverse to giving similar reprimands to the fourth estate in libel and other media actions.

Only the punishment is not to be sent to bed with no supper nor the withholding of a week's pocket money, but the loss of litigation and a consequential costs and damages award.

At this autumn's IBC conference, 'Protecting the Media', Anthony White QC of Matrix Chambers examined the current trend - in domestic and foreign courts and in Strasbourg - toward the tone of articles giving rise to complaint by claimants.

Although informing the audience that the theoretical starting point is that one may express oneself within one's right to freedom of expression as offensively and tastelessly as they may wish, he suggested that in practice, the courts are 'no more capable of ignoring taste then one would expect them to be'.

Concern has been expressed in some media defendant corners that the judiciary, over and above exercising its legal role, has begun through various means to impose its own standards of taste and decency by effectively acting as post-publication editors.

There is concern that rulings on the availability of qualified privilege, on what is fair and/or malicious, and on whether by an adopted tone the journalist in question has acted responsibly, shows that judges are imposing their own prejudices in their decision-making process.

Several recent cases have considered the important question of taste or tone and freedom of expression with regard to political speech, qualified privilege and privacy/breach of confidence.

As long ago as the Spycatcher case in 1992, the European Court of Human Rights made clear the ostensible starting point: 'Freedom of expression ...

is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.'

This view was reiterated in the domestic courts four years later by Lord Justice Sedley in Redmond-Bate v DPP [2000] HRLR 249, a case concerning a Christian fundamentalist street preacher.

'Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to promote violence.

Freedom only to speak inoffensively is not worth having,' Lord Justice Sedley said.

If so, can - and should - the author's tone or the means of expression ever be a deciding factor in the validity of an article and the availability of a defence?

Political speech

These questions were recently considered by the Court of Appeal in Pro-Life Alliance v The BBC [2002] EWCA Civ 297] which found that where political speech is concerned, it is extremely unlikely that questions of taste or offensiveness would supersede the right to express political views.

In this case, the matter concerned the BBC's decision not to broadcast, at the time of a general election, the Pro-Life Alliance's party election broadcast featuring graphic yet un-sensationalised images of a suction-aborted foetus.

The BBC had to balance what it saw as two competing obligations in this case: the first, accurately to transmit the election broadcast under public law given the number of candidates Pro-Life had put up; the second, not to broadcast that which would offend against good taste or decency.

At a judicial review of its decision, Mr Justice Scott Baker sympathised with the BBC's difficult balancing exercise by rejecting the judicial review and allowing the BCC a fairly wide margin of discretion.

However, this was overturned on appeal.

Having particular regard to the fact that the subject matter was an election broadcast at the time of a general election, rather than use of footage for any other reason at any other time, Lord Justice Laws stated that 'the courts owe a special responsibility to the public as the constitutional guardian of the freedom of political debate'.

On a sliding scale, he foresaw that the deference that should be given to the decision maker was at its lowest in political matters, where the broadcaster's views would be respected but modest in force; it would be slightly greater in respect of news reporting; and finally, it would be very high in terms of broadcast entertainment.

The justification? To protect the vital democratic principle of political free speech: 'Considera-tions of taste and decency cannot prevail over free speech by a political party at election time, save wholly exceptionally.'

Qualified privilege

Much has already been written about the extension of the defence of qualified privilege in the case of Reynolds v Times Newspapers and Lord Justice Nicholls's non-exhaustive ten-point test.

By contrast to political speech, at least at such sensitive times as described here (although it is foreseeable that it will extend into other areas of political speech), the tone of an article is relevant in the applicability of the Reynolds defence.

Indeed, it is specifically set out as the penultimate of the ten points.

'The tone of the article.

A newspaper can raise queries or call for an investigation.

It need not adopt allegations as statements of fact.'

In the 2001 case of Grobbelaar v News Group Newspapers Ltd (see [2002] Gazette, 8 February, 43) the tone of the article, which 'revelled in his downfall', was a deciding factor in the paper being unable to establish the defence.

On appeal to the House of Lords, while reducing the damages from the 85,000 awarded last month by the jury to 1 only, the Lords still remarked on the tone used by the newspaper, suggesting that this may have been a contributory factor for the jury to award the sum that it did ([2002] UKHL 40).

By specific contrast, in GKR Karate (UK) Limited v Yorkshire Post [2000] EWHC QB 180, regarding an article concerning the activities of a local karate club, the defence was not disallowed, given, among other things, that it was 'in altogether more restrained and moderate terms'.

In two other cases this year - Al Fagih v H H Saudi Research and Marketing (UK) Limited [2001] EWCA Civ 1634 and Bonnick v Morris [2002] UKPC 31 - the more restrained tone of the articles was persuasive in the applicability of the defence, showing that the courts are not averse to using the ninth point of Lord Nicholl's list to the full.

Privacy and confidence

Another view has been taken by the courts on privacy cases.

Whereas, in deciding if the Reynolds defence should apply, the courts can and will consider the tone and taste of the article to establish whether a journalist has acted responsibly, in two recent privacy cases the courts have said this should not be a ground for prior restraint; and the court should not 'censor bad taste'.

These varied decisions give considerable food for thought to publishers and broadcasters.

Legal commentators have already raised concern that the courts should not be seeking to impose their own prejudices, tastes and standards post publication and to penalise papers where theirs do not meet with the courts.

However, it is not difficult to see that when faced with an article that is already arguably wrong or recklessly published - hence the matter being before the court in the first place - a lurid, offensive or hostile tone will be hard for the courts to ignore as a contributory factor in their decision making process.

According to Anthony White QC, it is not difficult to see that 'an articulated distaste for the material before the court may have a bearing on the exercise of judicial discretion'.

By Amber Melville-Brown, Schillings, London