In the Media

'Reportage' flowers in BNP case: Media law update

PUBLISHED July 27, 2007

Emerging shoots of a new libel defence were nourished in a case brought by British National Party members.

The Court of Appeal has ruled that political magazine Searchlight was protected by a qualified privilege defence known as 'reportage', in respect of an article entitled 'BNP London row rumbles on'.

The article repeated defamatory allegations circulating among BNP members in the London area.

Generally, the effect of the "repetition rule" of English libel law is that anyone who repeats defamatory statements that have already published by someone else is liable for defamation together with the original publisher.

But in recent years, courts have recognised it may be in the public interest for such defamatory information to be recycled to a wider audience, so long as such repetitions have a neutral tone and do not take sides.

'Reportage' first sprouted five years ago in a case called Al-Fagih, where the defence was upheld for a newspaper that had neutrally reported defamatory details of a dispute involving members of a Saudi Arabian dissident political organisation in London.

Its early buds then appeared in MP George Galloway's case against the Daily Telegraph, but there the newspaper failed to establish a 'reportage' defence since it was found to have adopted and embellished defamatory material discovered in Baghdad documents, not reported it neutrally.

The defence has finally flowered in the BNP case.

Searchlight reported how two party members had been accused of stealing collection monies after a political rally, and how those members then issued a letter accusing another person of the theft and making other defamatory allegations about kneecapping, torture and threats to kill.

Giving the leading judgment, Lord Justice Ward found Searchlight's report amounted to neutral 'reportage' and responsible journalism in the public interest.

He outlined a nine-point 'reportage' check-list as guidance ? including that the court, not the editor, must decide whether a particular report is privileged because of its value to the public, but due weight must be given to editorial judgment. He also said any lingering doubt should be resolved in favour of publication.

"In a true case of reportage there is no need to take steps to ensure the accuracy of the published information," he added.

The case provides some comfort for publishers, but it remains to be seen how useful it will be for mass market publications. Searchlight perhaps found it relatively easy to persuade judges its journalism was responsible because its circulation of about 5,000 includes academics, MPs and people working in criminal justice and race relations.

A cautionary note was struck by Lord Justice Sedley, who said that since 'reportage' modifies the repetition rule, it needs to be treated "restrictively".

In other developments, Brian Retkin issued a noteworthy letter of claim against Google regarding anonymous defamatory third-party postings about his dotWORLDS domain name registration service, which allegedly appear in Google search results despite Retkin's complaints.

Watch that space. Trying to pin liability on Google for such automated publication may be adventurous. It would raise fundamental questions about the way the internet operates and publishers' defences which, at present, are only sketchily defined.

For its part, the Press Complaints Commission has been less ambitious, announcing that "user-generated and non-edited" material will not fall within its remit, and it will adjudicate only on content for which editors "could reasonably have been expected both to exercise control over and to apply the terms of the Code". It follows earlier guidance on the Code's remit in online publication, issued by the Press Standards Board of Finance Ltd which represents publishers that fund the PCC's system of press self-regulation.

Finally, in the criminal courts, a controversial gagging order imposed under S.11 Contempt of Court Act 1981 by Judge Warwick MacKinnon at Croydon Crown Court, banning the naming of a convicted paedophile, is being appealed by a group of media organisations led by Trinity Mirror.

Reporting restrictions imposed under S.4 and S.11 of the Act by Mr Justice Aikens, banning reports of certain information from an official secrets trial at the Old Bailey, are also being appealed separately.