Last Wednesday, the House of Lords delivered an important libel decision - Jameel & Ors v Wall Street Journal Europe Sprl [2006] UKHL 44 (see The Times Law Report here). This decision has quite rightly been praised as a landmark ruling that gives a protective shield to investigative journalism.
The five law lords who heard the appeal unanimously overturned high court and appeal court libel judgments against the Wall Street Journal Europe in December 2003 and quashed damages awards totalling £40,000 to a Saudi billionaire businessman, Mohammed Jameel, and his companies, over an article which said the Saudi Arabian authorities were monitoring the bank accounts of prominent Saudis for evidence of supporting terrorism.
The judges ruled that the lower courts had been interpreting the Reynolds privilege too restrictively and that the ten steps laid down in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 for responsible handling of a story, such as checking sources and seeking comment from the subject of an allegation, were examples, not hurdles for the media to get over. Basically the court held 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. At [51] Lord Hoffmann said (with my emphasis):
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 defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.
Lord Hoffmann at [54] continued:
The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information.
Similar sentiments were expressed by Lord Bingham of Cornhill at [33] (again with my emphasis):
Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.
Accordingly, if the journalists did behave fairly and responsibly and the information was of public importance, the fact that it contained relevant but defamatory allegations against prominent people would not permit them to win libel damages.
Restating the test, Lady Hale at [150]-[151] said (with my emphasis):
We have to judge the steps which are known to have been taken against the background of the style and tone of the publication in general and the article in particular. This is not a newspaper with an interest in publishing any sensational information however inaccurate (or even in some cases invented). It is, as the journalist quoted by my noble and learned friend said, "gravely serious" (indeed some might find it seriously dull). We need more such serious journalism in this country and our defamation law should encourage rather than discourage it.
The upshot of all this is that at its simplest there will be two distinct issues for the court to consider in these cases:
- first, whether the article was on a matter of public interest; and
- second, whether it was the product of responsible journalism.
(For an excellent summary of the decision, read this piece written by Guy Vassall-Adams, second junior counsel for the Wall Street Journal Europe before the House of Lords on this case.)
As reported by Media Guardian, this ruling will considerably reduce the "chilling effect" libel law has exerted on freedom of speech in the UK:
Geoffrey Robertson QC, author of the textbook Media Law, who represented the Journal, said: "The decision provides the media in Britain with an increased freedom to publish newsworthy stories. 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.
"The ruling also frees investigative journalists, authors and broadcasters to publish and defend stories without danger to their sources."
Read more here. Siobhain Butterworth for Media Guardian wrote that the decision was a "Star-spangled judgment":
It has taken a US publisher with First Amendment sensibilities to put English law back on track and improve protections for investigative journalism.
Read more here. This view was shared by Frances Gibb, Legal editor of The Times:
The British media won the freedom to publish allegations about public figures free from the threat of libel laws in a landmark House of Lords ruling today.
In a ground-breaking unanimous judgment, the law lords ruled in favour of a public interest defence that brings English law more into line with the freedom enjoyed by the US media.
Read more here.
In addition to prasising this decision, Geoffrey Robertson QC challenged Australia to catch-up and follow it. From The Australian:
FREEDOM of expression in Australia lags badly behind that of every other major English-speaking country following a landmark court decision in England yesterday, according to Australian-born barrister Geoffrey Robertson.
"The challenge is now to the High Court of Australia as to whether they are going to bring Australian media law into the 21st century by catching up to the English, the Americans and everyone else," Mr Robertson said after winning yesterday's ruling from Britain's most senior judges.
...
Mr Robertson said the decision on a defamation appeal by The Wall Street Journal meant that English newspapers would now be free to publish articles about Australian corruption, terrorism or crime that could not be legally published in Australia.
"Australia has the most antiquated libel laws in the English-speaking world and we are falling further behind," he said.
Sixteen Commonwealth countries automatically adopted the House of Lords ruling but Mr Robertson said Australia was now left with Singapore as having the most repressive defamation laws in the Commonwealth and that even Singapore was planning major reforms.
"Given that Australia does not have a bill of rights on which a public interest defence can be based it will be up to the judges to hopefully follow this common law precedent and make a similar ruling in Australia," he said.
Read more here. The Legal editor for The Australian, Chris Merritt, believes Geoffrey Robertson "clearly places too much faith in the law":
Even if the High Court of Australia were to embrace the defamation reforms favoured by Robertson, the new law would still give judges excessive discretion.
And on past performance, the Australian judiciary could be expected to apply that discretion with the same old bias against free speech.
The British reform permits the publication of defamatory material if it is in the public interest and is not irresponsible or reckless.
Media lawyer Patrick George, of Kennedys, said those qualifications come close to the discredited "reasonableness" test that consistently fails Australian publishers.
Robertson, who persuaded the House of Lords to introduce the reform, is clearly delighted with his win. But victory may have blinded him to the truth about the Australian judiciary.
Consider whether the Robertson reform would have led to a different outcome for Eddie Obeid in his defamation case against The Sydney Morning Herald.
It is hard to imagine subject matter that is of greater importance to the public. But was it reckless? Was it irresponsible?
In Robertson's bright new world, those questions would still be decided by the same oldmindset.
Read more here. I am inclined to agree with Chris Merritt's analysis. Although significant and important for the UK, I doubt that Jameel & Ors v Wall Street Journal Europe Sprl will have any impact on Australia's defamation law. Not only is the relevant test different in Australia, but the High Court has also been most unwilling to expand the scope of our implied freedom of political communication, suggesting that the court will not expand the scope of those defences available to Australian journalists and publishers in defamation cases.
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