Ten-point test of responsible journalism

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Created on Monday, 01 July 2013 00:00

Ten-point test of responsible journalism

16 Nov 2004

In its defence against George Galloway's libel claim, The Daily Telegraph relies on the protection for responsible journalism established by the law lords in a case brought by Albert Reynolds, the former Irish prime minister, against The Sunday Times.

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Before the law lords ruled on the Reynolds case in October 1999, newspapers that had carried accurate reports sometimes had to pay libel claimants huge sums in damages simply because they did not have the evidence to prove that what they had published was true.

Now, newspapers may be protected from liability provided they publish information that the public is entitled to know. Reynolds privilege, as it was called in court yesterday, gives news organisations that behave responsibly a defence against libel even if they cannot prove the truth of what they have published.

Reynolds privilege is a type of "qualified" privilege, which for many years has operated as a defence in libel. This protects the maker of an otherwise defamatory statement so long as he had a legal duty to communicate the information to someone who had a material interest in receiving it.

Giving the leading judgment in Reynolds, Lord Nicholls gave 10 examples of the factors courts might take into account when deciding whether qualified privilege would be available:

• 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.

• The nature of the information, and the extent to which the subject matter is of public concern.

• 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.

• The steps taken to verify the information.

• The status of the information. The allegation may have already been the subject of an investigation that commands respect.

• The urgency of the matter. News is often a perishable commodity.

• 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.

• Whether the article contained the gist of the claimant's side of the story.

• The tone of the article. A paper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

• The circumstances of the publication, including the timing.

Laying down his now famous "10 points", Lord Nicholls stressed that "the common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse".

The courts have continued to develop the 10-point test, deciding whether individual newspaper reports have acted in the public interest and met the standards of responsible journalism. But in Reynolds itself, The Sunday Times lost its appeal because its coverage did not include the former prime minister's own explanation for the conduct of which he was accused.

After Lord Nicholls handed down his 10 points, one enterprising firm of solicitors printed them on a small folding card that it sent to potential clients. A rival firm pointed out that, following the Court of Appeal's refinement of the test in a subsequent case called Loutchansky, reporters need only write "behave as a responsible journalist" on the back of their hands.

Since a back-of-the hand definition may turn out to be rather elastic, the Reynolds tests may still prove to be of importance in helping judges define the elusive concept of public interest.

By Joshua Rozenberg, Legal Editor

Source: The Telegraph UK, 16 November 2004