Libel and freedom of expression

The widely reported success of George Galloway in his claim against the Daily Telegraph newspaper has brought freedom of expression into sharp focus. 

 

Mr Galloway brought a claim against the Daily Telegraph for reporting that he had received payments from deposed dictator Saddam Hussein.  The High Court awarded him damages of £150,000 and the Daily Telegraph challenged that Judgment and took it to the Court of Appeal. 

 

The Court of Appeal released its judgment on 25 January 2006 and upheld the High Court’s decision and its damages award of £150,000.  The Daily Telegraph are considering whether to appeal the decision to the House of Lords. 

 

So what can we learn from this case?

 

The tort of defamation is designed to protect an individual’s reputation.  There is often confusion as to what is libel and what is slander, but in simple terms, it is libel if publication is made in a permanent form, such as in a newspaper.  If not, then it is slander.  The Claimant has to show the publication was made to a third party and obviously, in a case such as this, the publication has been made to countless numbers of readers and is accessible on the internet.  It is not enough for a Defendant to simply say that he did not mean to defame a person. 

 

In any case, there are a limited number of defences that can be relied upon and these are usually:

 

·       Qualified privilege

·       Fair comment

·       Justification

 

 

Essentially, if a Defendant can prove that the words were published with qualified privilege, then the Claimant will only have a remedy if he can prove that the Defendant acted maliciously.  In the Galloway case, a particular form of qualified privileged was relied upon, known as ‘Reynolds qualified privilege’.  This is named after the Irish Prime Minister, Albert Reynolds who brought a claim against Times Newspapers in 1999.  The Daily Telegraph argued that it could rely upon Reynolds qualified privilege because it had a right to publish its findings, on the grounds of public interest.  There are a number of criteria which a Court take into account and above all, it has to pay attention to freedom of expression.  The Daily Telegraph failed to satisfy the Courts in this case because it was found that its coverage had not been neutral and that it had adopted the allegations that Mr Galloway had taken money for his own personal gain. The Daily Telegraph are concerned that this is a blow for press freedom.

 

To rely upon the Defence, the Defendant must prove that the words complained of are fair comment, are made in good faith, without malice and are a matter of public interest.  The Daily Telegraph argued this defence but its claim was rejected.  This particularly related to the paper’s leader articles, one entitled “Saddam’s Little Helper”, which the Court found were seriously defamatory of Mr Galloway and were not reported fairly.

 

 

To succeed in a defence of justification, a Defendant has to show that the words complained of are true in substance and in fact.  This does not mean that every single word has to be proved as true, provided the substance of it is justified.  It is not good enough for a Defendant to say that he merely repeated allegations. 

 

 

In most cases where a libel claim is brought the Claimant wants a retraction and an apology for the words used, but will also be entitled to damages.  Not every case attracts the high figures we see in the newspapers.  Mr Galloway will receive damages of £150,000 from the Daily Telegraph, but they will also have to pick up his legal bill.  For the moment, the newspaper will have to make an interim payment of £200,000 on account of those costs and pay the rest later.  The costs of bringing a libel action are clearly significant and if he had lost his claim, Mr Galloway is said to have faced a legal bill estimated at around £2,000,000 and personal bankruptcy.  It remains to be seen whether the House of Lords will review this latest decision, which impacts on the way the press report upon those in the public eye.