“The question is not simply whether the allegations in the Iraqi documents were of public interest, but whether the Daily Telegraph was under a social or moral duty to communicate the totality of what it chose to publish to the world at large on 22 and 23 April 2003 and, specifically, the words complained of in these proceedings.”
These were the words of Mr Justice Eady last week, summing up the central question in an epic libel battle as he awarded Scottish MP George Galloway £150,000 libel damages over Daily Telegraph articles which, among other things, dubbed him “Saddam’s little helper”.
- December 5, 2018
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On any footing, last week’s 60-page judgment marked a bad day for the Telegraph. But it also sounded alarm bells for the media at large. It serves as a warning of the need to verify and balance copy before going into print.
The paper had run the so-called “Reynolds defence”, claiming not that what it published about Galloway was true, but that it was in the public interest that it should be published and in those circumstances was covered by qualified privilege. It had also argued “fair comment” in respect of headlines and leaders.
Roundly rejecting the Telegraph’s claims, the judge said what they published had gone “well beyond” reporting the content of documents said to have been found in government offices in Baghdad by Telegraph reporter David Blair.
As far as privilege was concerned he said: “Making all due allowance for the encouragement towards the wider and more flexible use of common law principles, in Reynolds, I am quite unable to uphold the privilege defence.”
As far as fair comment was concerned he said: “I have come to the conclusion that there is no basis upon which the defence of fair comment can succeed.”
The judgment, which at times was highly critical of the Telegraph for what the judge described as its “dramatic and condemnatory” handling of the Galloway “scoop”, provided an all too rare insight into first instance judicial thinking on libel matters. It was one of the very few cases to be heard by a judge rather than a jury and, as such, provided scope for the judge to give a detailed resume of his reasons.
Normally the reasons for libel decisions are decided and remain within the four walls of the jury room.
The judge said that he had “applied the Reynolds test”. Namely: was it in the public interest that the readers should know what the defendants chose to publish? Also, applying an objective test, could the Daily Telegraph properly consider that it was under a duty to tell the public?” He said he was satisfied that the publications did convey the serious meanings Galloway’s lawyers claimed they did.
Examining the “status” of the documents on which the pieces were based he said they could “clearly not be regarded as having the same status as some official report published after full enquiry”. He added it could hardly be suggested that the allegations that Galloway had received money from Saddam Hussein, or from the oil-for food programme, had been “the subject of an investigation that commands respect”.
Turning to the urgency for the Telegraph to get its story out he said he appreciated that news could be a “perishable commodity”. But he continued: “This story, if it could be stood up, would be of interest at any time. It would not become stale. The urgency from the public point of view cannot be said to be so great as to justify either not giving the claimant a proper opportunity to comment on the Baghdad documents or omitting to carry out any attempt at all at verification.”
Of the reporting itself, he said it had gone “well beyond reporting the contents of the documents and calling for an inquiry”.
Finding against the Telegraph he said: “It seems to me that Mr Galloway is entitled to be compensated for the manner in which the newspaper chose to put the Iraqi documents into the public domain and the spin which the defendants chose to put upon them.
“As he (Galloway) said, the Daily Telegraph chose not to confine itself to reporting the documents. He complains of the effect upon his reputation brought about by the ‘blizzard’ of comment and inference with which the publication of the documents was surrounded.
Moreover, the ‘blizzard’ came out of the blue without any opportunity to refute their inferences.”
Despite the judge’s criticism of the way the matter was handled, he described David Blair, who found the documents, as an “impressive and straightforward” witness and said he had no doubt that he believed the documents were genuine and that “they gave rise to legitimate questions”.
He said he also considered Telegraph executive editor Neil Darbyshire to be “an engaging and frank witness” who felt the paper was covering the story neutrally.
But he continued: “He is not the only Daily Telegraph witness to be deluding himself in this respect.” He said the Telegraph had not been neutral.
“They did not merely adopt the allegations.
They embraced them with relish and fervour. They then went on to embellish them in the ways I have described,” he said.
And he said no steps had been taken to verify the information in the documents because the paper had not thought it needed to do so.
Darbyshire: defended Telegraph’s story
DAILY TELEGRAPH EXECUTIVE EDITOR DARBYSHIRE SAYS VERDICT MEANS FREEDOM OF EXPRESSION ‘IS AN ILLUSION’
George Galloway’s libel victory means freedom of expression is “an illusion” under UK law according to the Daily Telegraph, which is faced with a costs bill of over £1million.
It has threatened to take the case to the Court of Appeal and after last Thursday’s hearing Daily Telegraph executive editor Neil Darbyshire issued a robust defence of the Galloway story.
Darbyshire said: “The Daily Telegraph published genuine documents that emanated from the highest levels of the Iraqi government and raised questions about the activities of a British MP.
“If, as we understand the Court to have held, English law offers no real protection to newspapers that publish documents which raise such important questions about the conduct of an elected Member of Parliament, then freedom of expression is an illusion.
“Following the discovery of the documents, an investigation into Mr Galloway has been launched by Sir Philip Mawer, the Parliamentary Commissioner for Standards.
“Mr Galloway has always denied what is alleged in these documents and we published his denials at the time of the original articles.
“It has never been the Daily Telegraph’s case to suggest that the allegations contained in the documents are true. These documents were published by us because their contents raised very important questions.
The Daily Telegraph did not and could not perform a detailed investigation into their contents. Newspapers have neither the power nor the resources to carry out such an investigation in a war-torn country.
“When we published the documents we did so believing that their contents were important, should be made public and would in due course be investigated by the proper authorities. The Daily Telegraph will co-operate fully with the Parliamentary Commissioner’s inquiry.
“Mr Galloway alleged that The Daily Telegraph published these documents as part of a witchhunt against him. This is nonsense.
Our reporter was looking for any documentary evidence of Saddam’s links with the West before the war. If these documents had named any other British MP as apparently receiving funds from Saddam our coverage would have been, in effect, the same.”
THE LEGAL EFFECT
The Galloway ruling looks set to undermine the opinionated style of British newspaper journalism.
This is the view of media law specialist Mark Stephens, from Finers Stephens Innocent, who believes the Telegraph could have avoided a libel writ if it had stuck to “neutral reportage”.
He added: “People will be looking at a more neutral approach and will adopt a much dryer style.
We’ve developed a polemical style of journalism because of the defence of fair comment.
“What courts are forcing us towards is a more American style where you hear from both sides of the dispute and the public make up their own minds.
In this case, the Telegraph could have said ‘here is the document we found in Iraq, it says this, Mr Galloway says it’s fake, members of the pubic make up your own mind – we want to have a public investigation’. That would have damaged Galloway far more and he wouldn’t have been able to respond to it.”
Media lawyer Niri Shan, from the firm Taylor Wessing, said: “What the court expects is out of line with editorial practice in many newspapers. If newspapers were to wait until full comment is obtained from the subject before publishing a story the danger is the newspaper may lose its scoop. Mr Justice Eady confirmed that this danger is not something the court believes is relevant.”
In a statement Daily Telegraph lawyers Dechert LLP said: “At first sight, the judgment calls into serious question whether the doctrine of freedom of expression affords newspapers the real protection which it had been assumed that they enjoyed when reporting matters of public concern
By Roger Pearson and Dominic Ponsford