George Galloway may not have won Big Brother, but he was certainly victorious in his libel action against The Daily Telegraph. The Court of Appeal’s ruling was a wholehearted endorsement of Mr Justice Eady’s judgment at trial. It upheld his decision that articles published by The Daily Telegraph were libellous of Mr Galloway in suggesting that he had been taking large sums of money personally from Saddam Hussein’s regime. The court also upheld the original award of £150,000 damages to Mr Galloway.

The case is an interesting one because at no time did the newspaper contend that it could prove the truth of the allegations published.

Instead, it argued that the articles were protected by Reynolds (or public interest) qualified privilege because the public had the right to know the contents of the documents found in Iraq, even if they were defamatory of Mr Galloway and regardless of whether their contents were true or not. It also argued that the publication of its conclusions on what the documents appeared to say were protected as fair comment. Both defences were rejected.

The purpose of the Reynolds defence is to allow the media to report on, and raise legitimate concerns about, matters of real public interest even if they cannot prove that the allegations made are true.

In return, however, the media is required to ensure that such matters are investigated and reported responsibly. The House of Lords in the Reynolds case gave guidance as to what the media had to do to establish "responsible journalism" by setting out a now well-known (but non-exhaustive) list of 10 factors which it said could be taken into account when assessing "responsible journalism".

In the Galloway case, the Court of Appeal readily accepted that the Baghdad documents were of great interest to the public. It even went so far as to say that "If the documents had been published without comment or further allegations of fact Mr Galloway could have had no complaint since, in so far as they contained statements or allegations of fact it was in the public interest for The Daily Telegraph to publish them… Such publication would be reportage." A key factor in the downfall of The Daily Telegraph was the tone of the article. The court took the view that the newspaper did not merely report what the Baghdad documents said but went on to adopt and embellish them, and that it went beyond the allegations made in the documents themselves.

In addition, while the court accepted that "… a newspaper (or anyone else) is entitled to comment in the strongest terms provided that what it says is in truth honest comment…" it considered that the statements which The Daily Telegraph said were its opinions were actually statements of fact, and therefore not protected as fair comment.

This decision not only shows how closely intertwined Reynolds qualified privilege and fair comment are, but also how they can affect each other. Here, the fact that Reynolds qualified privilege failed appears to have seriously impaired the newspaper’s chances of relying on fair comment. This case creates real areas of uncertainty for the media. At what point do opinions which one would expect to be protected by fair comment become impermissible statements of fact? Will anything other than adopting an approach of "neutral reportage" risk the media being unable to rely on Reynolds qualified privilege for protection?

That seems an unrealistic, and overly restrictive, expectation.

Answers to these questions are sorely needed but, as The Daily Telegraph has decided not to seek permission to appeal to the House of Lords, they will not be forthcoming in this case.

Amali de Silva is a media litigation lawyer with Wiggin LLP

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