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Friday, October 12, 2007

UK Author Wins Defamation Suit Appeal Using Reynolds Defense

The Court of Appeal has ruled in favor of an author who lost a defamation case last year against a police officer. Michael Charman had alleged that Graeme McLagan's book Bent Coppers libeled him by labelling him as corrupt and a lower court agreed. But the appellate court reversed, accepting Mr. McLagan's "Reynolds defense," in which a defendant can show that it has acted responsibly in doing its research and in publishing material that serves the public interest. The defense takes its name from the case of Reynolds v. Times Newspapers, [2007] EWCA Civ 972.

This is apparently the first time an author of a book has successfully used the Reynolds defense to fight off an allegation of defamation.

Here is an excerpt from the opinion. The justice quoted is Lord Justice Ward; he is commenting on the application of the Reynolds factors by the court below.

...

    1. "Although I have considerable sympathy for him since he did not have the benefit of Jameel at the time he wrote his judgment, I am satisfied that the judge erred in his approach. I am, moreover, satisfied that I have enough material before me to deal with this defence of Reynolds privilege. I have already expressed views about the professional responsibility of McLagan's conduct and I now turn to the ten matters identified by Lord Nicholls in Reynolds.

      (1) "The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true."

      Even though the passages bear the meaning of cogent grounds for suspicion rather than guilt of corruption, the charges are nonetheless, as the judge held, very serious for senior serving officers of the Met.

      (2) "The nature of the information, and the extent to which the subject-matter is a matter of public concern."

      The public interest in this story has always been common ground, and rightly so. The police are here to protect us and we demand and expect that they will carry out their duties without corruption and so, where there is corruption, it must be exposed and where there is a justified suspicion of corruption it deserves to be discussed.

      (3) "The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories."

      Much of the story comes, of course, from Brennan as revealed in the Gaspar tapes. Brennan was a flawed character as was made obvious. McLagan did not, however, rest on his account alone, he made great efforts to tap his police sources for all the light they could shed on the problem. This was, after all, the story of the Ghost Squad.

      (4) "The steps taken to verify the information."

      In his judgment the judge said that McLagan did not claim to have verified the information about Charman and that there were no means whereby he could have done so. He held,

      "In my view McLagan ought to have carried out an evaluation and analysis of the material available to him."

      Indeed he ought to have done. But in my judgment it is plain that he did so. True it is he could not verify the truth of Brennan's allegations because only three people were involved in the corruption and the payment of £50,000 by Brennan to the officers. It was one man's word against another's. What McLagan did do, and what the judge gives him no or too little credit for doing was the further research he carried out, the interviews he held with the investigating officers and the judgment he made as to their credibility and the inferences which could properly be drawn from the material as a whole. It is not easy to see what more he could have done.

      (5) "The status of the information. The allegation may have already been the subject of an investigation which commands respect."

      "The status of the information" was no doubt introduced in Reynolds because of the importance that it had in the Court of Appeal in that case. At p. 167, the Court of Appeal said:

      "We make reference to "status" bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect."

      To the extent that matters were investigated at the Central Criminal Court, as they were, they must command respect. The judge held it was "unwise on McLagan's part to have placed reliance on the opinions expressed privately to him by individual officers such as Coles", but these were the investigating officers and their opinions cannot be discounted even making allowance for the counter-attack launched against them by Charman. The status of their information is certainly high enough to warrant writing a story which gives rise to no more serious an allegation than that there were cogent grounds to suspect Charman.

      (6) "The urgency of the matter. News is often a perishable commodity."

      This factor does not arise in this case as the judge correctly held. I see no reason at all for confining responsible journalism to newspapers and magazines. It must be extended to the authors and publishers of books. Mr Tomlinson did not attempt to suggest otherwise. As Lord Hoffmann said in Jameel, [54], the Reynolds defence is available "to anyone who publishes material of public interest in any medium", the emphasis being added by me. I agree, however, with Mr Tomlinson's submission that because the authors and publishers are not under the same pressure of time before the presses begin to roll, greater care will be expected of them to ensure they act properly.

      (7) "Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary."

      The judge accepted that approaches to obtain Charman's side of the story were rebuffed. The judge concluded that McLagan was entitled to assume that Charman would have remained uncooperative if allegations to be published in the book had been put directly to him, rather than through his brother-in-law, Millar who was co-ordinating the Charman campaign to publicise their side of the story.

      (8) "Whether the article contained the gist of the claimant's side of the story."

      The judge accepted that the book did contain Charman and Redgrave's side of the story. Curiously the judge appears to criticise McLagan for not having sought comment as to the "positive case" which was going to be made against him in the book. This seems inconsistent with his earlier correct finding that Charman would have remained uncooperative if he had been approached.

      (9) "The tone of the [book] and [author] can raise queries or call for an investigation. It need not adopt allegations as statements of fact."

      The judge relied on his earlier finding of partial adoption of the Brennan allegations as true but that does not really deal with the tone of the book. In my judgment the tone of this book is exactly what one would expect of an objective investigative journalist. The "inside story" of Charman and Redgrave was essentially factual in context and unsensational in tone. Even the "damning" words of prosecuting counsel Richard Latham Q.C. chosen "with care" do not more than add permissible colour to the book. Reading it as a whole the author expresses no personal judgment but leaves it to the reader to form his or her own impression of the two officers concerned. That seems to me to be a hallmark of responsible journalism.

      (10) "The circumstances of the publication, including its timing."

      There is nothing in this point.

  1. What seems to me to be lacking after the judge's analysis of those ten factors is some assessment of whether a fair balance was being held between the freedom of expression and the reputations of the individuals, bearing in mind that the court should suffer no greater limitation of press freedom than is necessary to hold that balance. Lord Nicholls concluded:

    "The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know … Any lingering doubts should be resolved in favour of publication."

    This theme was emphasised in Jameel as I pointed out in paragraphs 66(6) and (7). Gray J. would not have been aware of their Lordships' rebuke of the lower courts for their failure to appreciate how "liberalising" an opinion Reynolds was intended to be. Given that Charman and Redgrave had themselves put the attack on their character in the public domain by their press announcements and by the statement made on their behalf in Parliament, the balance of fairness falls in my judgment heavily in favour of the case against them being put to the public.

    1. Having given the matter most careful consideration, I am totally satisfied that this was a piece of responsible journalism. As Lord Bingham said in Jameel (35):

      "It might be thought that this was the sort of neutral investigative journalism which Reynolds privilege exists to protect.""

Read more about the case here. Read the opinion from the Court of Appeal here. The case is Charman v. Orion Group Publishing Ltd.

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