The past week has seen a series of extraordinary events arising out of a BBC Newsnight broadcast about sexual abuse in children’s homes in North Wales in the 1970s and 1980s. This led to the wide dissemination of false allegations against the former Conservative Party Treasurer, Lord McAlpine and resulted in the resignation of the Director General of the BBC. The case gives rise to a number of interesting libel law questions and casts doubt on the appropriateness of a proposed new “public interest defence”.
Background
Let’s begin with the recent history. On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales. One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse. He said that his abusers included “a leading Tory politician of the Thatcher era”.
The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine. His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.
On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question. Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity. The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.
Did the Broadcast Libel Lord McAlpine?
The first question to ask is whether it could be said that the broadcast libelled Lord McAlpine. The tort of libel is committed where a defendant publishes defamatory allegations about the claimant. It is clear that the claimant does not have to be mentioned by name:
“Where he is not named the test of this is whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to” (Knupffer v. London Express Newspaper Limited [1944] AC 116, 119).
Although the “leading Tory politician of the Thatcher era” was not named on the broadcast, many viewers could and would have identified Lord McAlpine because of the Tweets which were circulating in advance of transmission which said that he was the politician in question.
A number of commentators have pointed out that the case has parallels with a 2006 claim brought by the footballer Ashley Cole over reports in The Sun and the News of the World that two (unnamed) Premiership players indulged in a “gay sex orgy”. The defendants apologised and paid substantial damages.
The fact that many or even most viewers of the programme would not have identified Lord McAlpine would only be relevant to damages and would not provide a defence.
A Reynolds Defence?
The BBC have accepted that the allegation against Lord McAlpine was false. The only potential defence available to them would appear to be the Reynolds or responsible publication defence.
The subject matter was plainly of public interest. The question would then arise as to whether the BBC acted responsibly in publishing the allegations that they did. The obligations which the BBC itself undertakes in relation to accuracy are set out in its Editorial Guidelines. These begin by stating that
Where appropriate to the output, we should:
• gather material using first hand sources wherever possible
• check and cross check facts
• validate the authenticity of documentary evidence and digital material
• corroborate claims and allegations made by contributors wherever possible.
There appear to be serious question marks over the “cross checking” of the facts and “corroboration” carried out by the BBC – or, in Reynolds terms, the steps taken to verify (Lord Nicholls’ point (4) on his “non-exhaustive” list of circumstances relevant to the existence of the Reynolds defence ([2001] 2 AC 127, 205).
There were doubts about Mr Messham’s evidence in general (see today’s Mail on Sunday article) and it appears that he was not shown a photograph of Lord McAlpine to check that this was, indeed, the person he was talking about.
Then there is the opportunity which should be afforded to a person accused to put their side of the story. The BBC Editorial Guidelines make it clear that
“When our output makes allegations of wrongdoing, iniquity or incompetence or lays out a strong and damaging critique of an individual or institution the presumption is that those criticised should be given a “right of reply”, that is, given a fair opportunity to respond to the allegations”.
In other words, the allegations should have been put to Lord McAlpine – as also suggested by points 7 and 8 in Lord Nicholls’ “non-exhaustive” list ([2001] 2 AC 127, 205).
It is not clear whether the BBC did put the allegations to Lord McAlpine (no such approach is mentioned in his statement). If they did not, there would be a strong argument that they had not acted responsibly.
Overall, it would seem that the BBC would face considerable difficulty in establishing a Reynolds defence in this case.
Claims against Tweeters
Libel claims by Lord McAlpine against those who identified him on Twitter as being the “leading Tory politician” implicated in the North Wales abuse scandal are much more straightforward. Although these tweets used different words many directly identified Lord McAlpine as the unidentified Tory mentioned by Newsnight – or as the “Tory paedophile”. Even if they simply stated “The BBC says Lord McAlpine was involved in child abuse” this would provide no defence as it would fall foul of the so-called “repetition rule”: that “It is no defence to an action for defamation for the defendant to prove that he was merely repeating what he has been told” (see Stern v Piper [1997] QB 123).
The tweeters who identified Lord McAlpine include a number of well known figures – several who have apologised. Although this will mitigate their damages it does not provide them with a defence. Those who tweeted Lord McAlpine’s name would have no potential Reynolds defence unless they had personally taken steps to verify the allegation. This seems highly unlikely to say the least. As a result, Lord McAlpine is likely to have tens if not hundreds or thousands of potential claims for libel.
Responsible Publication: the proposed new public interest defence
An interesting final point concerns the defence of responsible publication which some campaigners have proposed to replace the current clause 4 of the Defamation Bill. The current version of the bill contains a defence of “Responsible Publication in the Public Interest” – which is a codification of Reynolds. However, as Alastair Mullis and Andrew Scott pointed out on Inforrm last week, a more radical proposal was advanced by Lord Lester in the recent House of Lords debate.
Lord Lester formulated the new defence in this way
“First, it might say that it is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest. Secondly, in the case of publication for the purposes of journalism, the court shall, in determining whether the requirements of (a) and (b) are satisfied, give a wide discretion to the editor or other person responsible for the publication as to the content of the statement, the form in which the statement was made and the timing of the publication … Thirdly, for the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Fourthly, a defence under this section shall not succeed … if the claimant shows that he asked the defendant for the publication of a correction of the statement complained of and that the request was unreasonably refused or granted subject to unreasonable conditions”
If this defence had been in force at the time of the Newsnight broadcast (or indeed, the publication of the offending Tweets) then it would, arguably, have provided a complete answer to any claim by Lord McAlpine. The broadcast plainly contributed to a debate of public interest and it seems that the broadcasters believed that the publication of the interview with Mr Messham was in the public interest. The broadcasters would, presumably, argue that this belief was reasonable because it was based on an interview with a victim who had consistently made the allegation – and there was apparently, a second victim who had made a similar allegation.
The Tweeters would say that their tweets contribute to a public interest debate and that they reasonably believed that it was in the public interest to publish because the identification of Lord McAlpine had been the result of a BBC investigation.
The fact that Lord McAlpine could ask for the publication of a correction would provide him with little solace for the publication of such a serious defamatory allegation, founded on very thin evidence.
There is a strong argument that a defence which would permit the publication of very serious but wholly unfounded allegations without legal liability is not fit for purpose and fails to strike a proper balance between reputation and expression.
Or that a defence which fails to distinguish between broadcast journalism and twitter gossip is not fit for purpose? The BBC programme contained an overview of the background and then an interview with Messham, who was willing to be named and identified in the interview. Very hard to do that in 143 characters – even though it was the tweets which named McAlpine. Perhaps the proposed defence should be set at a lower bar for more substantial, apparently credible publications – but with the bar raising as the allegation becomes more defamatory (in this case, that McAlpine was actually named) and the evidence becomes less credible?
1. Does the Twitter analysis also go for people on Facebook, Youtube, and Wikipedia?
2. How can you apply UK libel law to US tweeters?
3. How about the Guardian, which was the first mainstream pub to actually link the internet speculation of his name back to the BBC story which was “unnamed”?
In relation to these three points
1. The Twitter analysis would apply to anyone who published online
2. Strictly speaking when a Tweet is published in England then English law applies (because the tort of defamation is committed in the place of publication). In theory a US tweeter could be served “out of the jurisdiction” and sued to judgment – although the judgment could probably not be enforced in the US because of the SPEECH Act
3. The Guardian made it clear that this was a case of mistaken identity – in other words it did not make any defamatory allegation against Lord McAlpine. It is not defamatory to say “Lord McAlpine is not guilty of the allegations made against him”.
regarding point 3
according to my McNae’s law for journalists it COULD BE defamatory to say “the rumours that x is a y are untrue”, as in the case of Liam Neeson and Natasha Richardson who sued a paper in Belfast who said they did not believe rumours that their marriage was on the rocks
This media law manual I found online also says that: http://books.google.co.uk/books?id=3P7gjqN5SdMC&pg=PA177&lpg=PA177&dq=reporting+rumour+defamation+liam+neeson&source=bl&ots=yv_9o7NJkD&sig=wFJQiOIKwcI3NypYfh0C3a49CeM&hl=en&sa=X&ei=FcqcUKnaCdKEhQflz4GYBA&ved=0CC0Q6AEwAA#v=onepage&q&f=false
This is the principle that a reasonable person might suppose that “there is no smoke without fire”
Surely the tweet “Why is Lord McAlpine trending?” is not by and of itself libellous, however? It makes no claims, doesn’t mention any claims, and is merely a question. This seems to be the one the press are leaning on the most, though.
Can mentioning a name without any context or claim be in and of itself libellous? If so, is saying “Why is David Cameron trending?” libellous if there so happens to be a salacious story relating to David Cameron circulating?
“Why is Lord McAlpine trending” is unobjectionable but “Lord McAlpine is the person named by Newsnight” is defamatory. It all depends on context
Is it not a defence to have accepted the piece was wrong, based on an apparently innocent misidentification, and having apologised and set the record straight with prominence greater than the original defamatory piece?
If it’s not in the public interest for unfounded allegations to be aired, then it sure as hell isn’t in the public interest that the programme budget for about a dozen series is wasted on lawyers fees defending a libel claim against a wealthy retiree who no-one under thirty had heard of until Friday.
There’s is no mention in your report as to whom issued the injunction stopping Newsnight from naming the “top Tory” in the prog on 2 Nov. I heard that there had been one issued on Radio 4 (or it might have been LBC) around midday on the news on the same day. This seems to have been widely forgotten, but it is not inconsequential. Why?
We do not believe that there was any such injunction. It is almost impossible to obtain an injunction to restrain the publication of an alleged defamation and, if there had been an application for one it would have made the BBC a lot more careful.
Getting a legal decision is one thing but getting Twitter to remove all the comments will be quite another. It wll be a monumental precedent if Twitter can be forced to remove all the comments – one which will have positive and far-reaching consequences for victims of online defamaiton and harassment all over the world.
Excellent analysis. Thank you for your clarity. Monbiot and Bercow and the rest of the confederacy of idiots who comprise the twitterati should be forced to read it. (Not that they could understand it, but just to stop their moronic bleatings for two minutes)
Well, the Newsnight / McAlpine / BIJ debacle is a crucible in more ways than one…
The above discussion does not offer a fair representation of the new defence developed by Brian Neill, mooted by Lord Lester, and discussed by myself and Alastair Mullis on Inforrm last week. That defence requires three things:
1) that a discursive remedy is offered to the impugned person
2) that the publisher honestly believed that publication was in the public interest
3) that the publisher reasonably believed that publication was in the public interest.
The discussion above appears to conflate pts 2 and 3. A well-resourced journalistic publisher could honestly believe (2) that publication was in the public interest because they had heard the same story from two sources. They could not reasonably believe this was the case (3), however, unless they had undertaken the sorts of checks that an ethical journalist should undertake (eg approach the subject of the story for comment; properly cross-check allegations with other knowable facts etc). The new defence would not shift the law any distance from Reynolds in terms of pre-publication requirement. Nor, gauging from what Lord Lester has said consistently on this front, is it intended to.
Your argument amounts to an important critique of a malice-based standard (a la NYT v Sullivan, or the defence preferred by some libel reform campaigners). It does not properly bite on that set out by Lord Lester.
As a separate point, you are right to point out that under the current law repetition on Twitter would create liability for the many thousands of people so engaged. All such people no doubt feel remarkably foolish now. To suggest that they should be liable for any libel caused, however, is plainly ridiculous. We cannot put Twitter, Facebook etc back in the box.
The Lester / Neill defence seems to me to recognise this. It is clear that what can be expected of people reading the Times or watching the BBC must be very much less than what is expected of those writing for mainstream media. If I tweet on the basis of something I watch on Newsnight, it is perfectly reasonable for me to do so. This would not mean that the subject of the libel has no avenue to seek redress. All such tweetings (twittering?), links, likes etc are the reasonably forseeable result of the initial publication. Indeed, having people spread the word on matters of public importance is precisely why journalism happens, and why we need it. As the reasonably forseeable result of the original publication, though, such secondary publication and the harm it causes is attributable in law to the tort caused by the original publication.
The proposed new defence does, indeed, require a belief which is both honest and reasonable but the latter does not, on the draft quoted by Lord Lester, include any element of “responsible journalism”. All that is required is a reasonable belief that the making of the statement is in the public interest – with no obligation to take any steps to verify (or believe in its truth or reliability). “Reasonable belief” is generally regarded as a low hurdle – any belief supported by rational grounds will usually do. In this case, there would be a strong argument that it was reasonable for the BBC to transmit the statement in in question – particularly bearing in mind the importance of the issue and the lack of express identification.
I don’t think that reasonableness could be taken up straightforwardly from any other legal context. Any statutory public interest defence would have to be interpreted in light of the HRA. Here we would have a conflict between the art 8 right to reputation and the art 10 right to freedom of expression. In such circumstances, as per Lord Steyn in Re S at [17], a court would have to engage in a two-way balancing exercise in light of an intense scrutiny on all the circumstances of the case. ‘Reasonableness’ allows for the balancing exercise to be undertaken in a way that ‘honesty’ does not. What it requires, ie the size of the hurdle to publication posed by Art 8, would depend on all relevant factors. This would include the position of the publisher, what could reasonably be expected of them to stand the story up, and the seriousness of the libel if the story proved incorrect. It shouldn’t matter that the Reynolds factors (or similar less ‘tone’) are not stated explicitly in the statute. One would expect that would be made plain in an explanatory memorandum or in Parliamentary explanation of the Bill.
As an aside, I’m not sure that the identification issue per se should bear on this balancing exercise. It is a binary issue: person identified, or not identified. This is a very interesting and uncertain aspect of the ‘case’ in hand: to what extent can identification depend on legal innuendo type extraneous knowledge? Does jigsaw information have to exist at the time of publication, or would it be enough for the publication to elicit subsequent publication of additional focusing/confirming details?
It can only have been this factor that saw the internal legalling of the Newsnight story passed. The Cole case does at least suggest that identification is possible by this means, although the publication in that case also included an obscured photograph of the people purportedly concerned, and (if I recall correctly) other more or less clear insinuations that Cole was involved (similar, of course, to newspapers’ not so subtle attempts to expose the holders of super-injunctions last spring).
I agree with the article’s conclusions on the Lester / Neill proposal in so far as it undoubtedly does deny Claimants an actionable tort – or in other words, access to justice – when they have suffered groundless reputational damage: where the criteria are satisfied. I do also accept Andrew Scott’s view that (in this one aspect at least) the proposal is not a significant ground shift from current Reynolds QP: it is often left unmentioned by reforming voices that even the current laws render a full defence to published falsehoods, in effect, more likely the more serious the falsehood is.
Underpinning both points is the question – addressed by Lester, various regulatory proposals and bugedone’s post above – of whether a “traditional” libel approach of remedy through the Courts is, in the modern environment, proportionate and efficient justice.
Where the ‘Lester plan’ could succeed is if supported by a robust regulatory regime whereby a victim of serious falsehoods could recover certain costs and/or other relief at a lower premium for all parties, safe in the knowledge that – in order to qualify for the defence at law – the erroneous publisher had already made public its correction, and the damage was stemmed. That way, only reckless falsehoods – and damage compounded by those ‘sticking to their grounds’ – would be the domain of the Courts (the more exhausting and punitive process).
Exactly what form that regime takes is, of course, the 100 million word question…
“There is a strong argument that a defence which would permit the publication of very serious but wholly unfounded allegations without legal liability is not fit for purpose and fails to strike a proper balance between reputation and expression.”
Just to pick up on that last point, I’m not sure I agree. When it comes to such serious allegations as child sexual abuse, there is a difficult balance to be struck: between protecting reputations on the one hand, and ensuring such allegations are reported and taken seriously on the other.
It is arguable that the restrictive nature of the current libel law is one of the reasons the reports of sexual abuse by Sir Jimmy Savile weren’t published until after his death, allowing him to get away with it for decades. That is a consequence of our current libel law which strongly discourages the media from reporting such allegations. On the other hand, a more liberal law would make it more likely that innocent people would have their reputations damaged by being slurred with false and unfounded allegations, as happened to Lord McAlpine.
Simply put, we have to bite a bullet somewhere on this one. Personally, I’m inclined to support a liberalisation of the law: on the grounds that while the reporting of false allegations can be incredibly damaging and hurtful, failing to allow true allegations to be reported and investigated is even more so. Ultimately, a law which gives the media more leeway to report such allegations would be better for the victims, even though an increased number of false allegations would also be an inevitable result.
I’m particularly interested in this sentence in your article: ‘Even if they simply stated “The BBC says Lord McAlpine was involved in child abuse” this would provide no defence as it would fall foul of the so-called “repetition rule”: that “It is no defence to an action for defamation for the defendant to prove that he was merely repeating what he has been told” (see Stern v Piper [1997] QB 123).’
This sentence (and my quoting of it) of course itself repeats a defamatory remark. Does you use of the conditional (‘even if’) turn it into a non-defamatory one? One would hope so, in which case the ‘repetition rule’ is not as straightforward as it sounds. For otherwise it would apply to apologies. After all apologies cannot help but repeat the defamation by referring to it, and indeed they often sound insincere, especially when made after the injured party has asked for one. In fact, the harder one tries to make an apology sound sincere, the less convincing it often is.
I’m not a lawyer, but I think there is a strong element of context to the repetition rule.
In the old days of newspapers the reporting of it had to be “accurate and contemporary” so a report on the apology would be ok, but an endless stream of stories after the fact, all repeating the details, would be questionable. Because if ALL repetition was impossible, legal textbooks would themselves fall foul of the same sanction!
I think one of the big problems is that these rules haven’t been reformed since the dawn of the internet. If you have the apology report on the internet, the contemporary nature of the report is nullified and anyone can access the fact of the original libel any time they like.
I meant to add that part of the context here would have to include the public statement made by McAlpine in a context of new social media. He would have to expect that making such a statement in the atmosphere that spawned the original twitter breaches, would lead to many multiple repetitions of the allegation.
but as I say I’m not a lawyer…
I don’t agree that it’s been demonstrated above that McAlpine was in fact and in law libeled by the BBC. The 1944 case quoted is describing a form of words that uniquely identifies the libeled person, to at least some who know that person, but without publishing the person’s name per se. Fair enough, but the words transmitted by the BBC did not do this. The information provided could have matched a on the order of a hundred individuals, certainly dozens. No specific individual was identified, even to those who knew him.
Identification was only made to those who had read the tweets – and regardless if those individuals had any prior knowledge of McAlpine (many or most had none). The tweets, of course, did name a specific individual. In my view it is the tweets that created the libel, and thus it is the tweeters, only, that should answer for it on these grounds. The BBC committed no harm. I don’t agree that the BBC has a duty to know, and to react to, independent parties (tweeters) publishing a name which the BBC has, correctly, refrained from publishing.
The Cole case is not applicable as a precedent. In the Cole case, the newspaper published information that did identify the claimants, because they had inadequately obscured the photograph, and, aggravating this, they had provided hints and innuendo, which further aggravates the case because it suggests that it was their intent to identify the claimants while preserving a veneer of deniability. None of those points apply to the BBC, intentionally or unintentionally.
The one area where I would say the BBC comes closest to responsibility for a defamation is in the action of the IBJ editor in his remarks made at the Oxford Union, implicitly confirming the McAlpine name (“you said it”) when it was suggested to him by Michael Crick of Channel 4. At that point it was not in print and so not yet a libel. The BBC could also claim, fairly weakly, that there are not responsible for the actions of employees of the IBJ, but i think that would be weak and fairly transparent – the IBJ is a contractor under BBC control and direction, and more to the point just appears to be an outsourcing operation and “cut out” for BBC news operations.
I am no apologist for the BBC, but with the exception of the actions of the IBJ, I see no case that the BBC is responsible for the libel, and a very dangerous precedent if it were deemed to be liable, since it was (apart from the IBJ) solely the actions of totally independent parties (tweeters) that enabled the libel to occur, whereas the BBC did everything reasonable in its power (bar again reigning in the IBJ) to refrain from libeling McAlpine. No person or entity should be held accountable for the actions of unrelated parties. Nor should there be an obligation to scour the internet, in real time, for any source that might have improperly matched a name to a story, prior to publishing or broadcasting any story. Under those conditions, investigative journalism would be bound hand and foot.
On the other hand, a defamation case against the BBC based on its responsibility for rogue actions of the IBJ, rather than on its failure to consider tweets made by totally independent tweeters, would have merit and probably would deserve to succeed.
However I believe the rapid settlement between the BBC and McAlpine represents a desire by both parties to bury the issue as soon as possible and keep it out of the news. The BBC greatly dislikes being the news, as no doubt does Lord McAlpine.
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