There are several other reasons why the decision of the House of Lords in Reynolds v Times Newspapers was aberrant. Transferring the risk from huge publishers like Associated Newspapers and News International for publishing false and defamatory material on to modestly remunerated public servants is such as police and army officers is extraordinary enough.
The number of libel actions that are commenced against Fleet Street titles every year is so small that they only present any financial substantial risk if – as some papers do as did the Guardian – they breach the NUJ and IPSO Codes and refuse to admit error.
Another consequence is that if an individual were the subject of a false and/or misleading allegation and commences a legal action then by the unilateral election of the defendant newspaper/broadcaster the court would consider only the issue of whether the publication/broadcast fell within the defined ambit of “responsible journalism”; and the issue of whether the allegations are true or untrue ceases to be addressed. The issue of whether the allegation in question was or was not true has been expressly dismissed as irrelevant to the Reynolds defence. Here are senior judges ushering in a post-truth society.
The government both compounds and expands the error made by the House of Lords
It was too much to hope that in the face of the lobbying onslaught of the empire of Fleet Street, that parliament would reverse this aberration by the House of Lords, restore a proper application of the ECHR in the UK law, and abolish the Reynolds Defence in the 2013 Defamation Act to replace it with a provision that at least did not leave dangerous falsities on public interest issues uncorrected.
As always the press’ far greater power and organisation ensured that the terms of Section 4 of the 2013 Defamation Act (which both replaced and abolished the Reynolds Defence) are at least as wide as its common law predecessor. Its terms grant an alarming degree of license to publishers and broadcasters to publish misleading and damaging material without being obliged to correct it.
Here are its provisions, which would rob Colonel Campbell James, his regiment, the British Army and the British nation of a remedy in the face of allegations of brutality towards prisoners just as surely as did the Reynolds defence. Defamation Act 2013, section 4:
“Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”
It is worth just pausing to consider the wording of this section, and the absurdity of branding this a “public interest” defence. Where a publication takes place on a matter of public that both misleads the general public and wrongly damages the reputation of an individual in the public eye the public interest is blindingly obvious that it be corrected. This provision achieves exactly the opposite.
What should the law do where a media publisher has made a genuine error?
This is answered in part by the IPSO and NUJ Codes – error should be corrected and if they are not the courts should be free to provide vindication for those who are the victims of those errors – thereby securing their Article 8 rights; and ensure that the Article 10 rights of those who were misled is preserved by their being disabused of the misinformation that they have imbibed.
The key remaining question is who should bear the cost of the error; should it be the errant publisher or innocent victim? This came up in the case brought by Sergeant Gary Flood against Times Newspapers who suggested that the office was corrupt, and after goading the police into starting an investigation which the then proved the innocence of Sergeant Flood refuse to correct the report. The courts decided that it was Sergeant Flood who should take the hit – rather than News International.
Should the amount of damages paid to libel victims be reduced if the journalist made genuine efforts to verify the story?
Where publishing errors are not deliberate – i.e. not in law malicious – and the publisher offers a correction and compensation, the claimant only recovers damages at a discount. This is via the Offer of Amends defence which gives defendants a discount of up to 50% in damages if error is promptly acknowledged post publication. Where a newspaper (or any other media outlet) has erred only after undertaking a responsible degree of research and checking then account should is already taken of that factor in the amount of damages awarded, as a legitimate recognition of the importance of the Article 10 free speech right in the UK.
That should be how “public interest” should issue should be addressed – even though it inevitably creates unfairness for the innocent claimant whose human rights have been infringed for profit. What no defence should do is absolve a newspaper or broadcaster of correcting false and defamatory material that they published about an individual; there being a blindingly obvious public interest in high profile individuals (otherwise) not being the subject to false allegations which would rob people of confidence in them for no good reason.
The Section 4 defence however permits titles like the Guardian to refuse to correct errors by means of the publication of information which offends its editorial stance on an issue like the Iraq war, and the Times when it has embarked on a crusade to brand an innocent police officer as being corrupt and does not want to admit that it was wrong.
Why is the Section 4 defence such a dangerous bulwark for “fake news”?
This gaping hole in the law’s ability to protect us from the potent whims of the small number of powerful men that control Fleet Street would be less of a concern if the government had made it its business to ensure that Fleet Street in particular would take responsibility for its own errors, and ensure that the Press was policed by means of a fully independent and potent regulator. After Leveson the only issue that mattered was what was going to replace the PCC. If it was to be just a rebranded, and in some respects even weakened successor, then the general public will have derived virtually no practical benefit from the huge expense of Leveson; except learning just how badly some Fleet Street titles routinely behave.
In rebranding the Press Complaints Commission as IPSO, ensuring it is run and controlled by the press, and by refusing to make it Leveson compliant, Fleet Street has shown its absolute determination to prefer its own commercial and hubristic interests over the interests of the general public when Fleet St titles publish “fake news”. In so doing Fleet Street also show contempt for both the expressed will of Parliament and the nation. The Guardian and the Financial Time have opted for an even less independent form of self-regulation than IPSO.
The problem is not so much with the IPSO Code which requires both promptness and “due prominence”, but with IPSO’s commissioners who are content to allow papers to flout the terms of the IPSO Code. So it is that IPSO is content for millions to be misled by a full front page banner headline “Queen Backs Brexit” which can be read by many millions on news stands, apps, evening and morning TV programmes; and for the correction to be by means of a narrow strip at the foot of the page which can be seen by none of these means, leaving millions none the wiser that the Sun had misled them.
Section 40 – the only remedy left to align Fleet Street with the will of parliament and the public
That is why Section 40 of the Crime and Courts Act 2013 is so important, and why the newspapers are opposing it with such vigour and mendacity. The decision by the Culture Media & Sport Committee of the House of Parliament unanimously to back robust action to ensure that the press does agree to a Leveson-compliant regulator is therefore incredibly welcome, and hopefully it will be adopted. At the end of the suggested year the government will take the necessary steps to impose on the press something which it has vigorously rejected previously.
Sadly, history however does not encourage a great deal of optimism. When the PCC was set up in 1991 the recommendation was that it be given a year to prove itself, failing which a form of statutory regulation be instigated. More than twenty years went by after that deadline expired during which the PCC showed itself to be utterly unequal to the task, and nothing was done.
During this time the News of the World and the Mirror engaged in illegality on an industrial level by means of police bribery, phone hacking, blagging etc. The PCC then “investigated” and exonerated the News of the World from any substantial wrongdoing and it was only a group of courageous lawyers that exposed what I am sure is only a modest proportion of the wrongdoing by Fleet St on the PCC’s watch.
So it was that thousands of individuals (in the public eye or otherwise) paid the price in their privacy and quality of life leading to a public enquiry which cost the taxpayer several million pounds before the extent of press’ wrongdoing was brought to light before it was finally accepted that the existing system of press regulation was unfit for purpose. All this because the PCC was not enforcing its own code which proscribed all this illegal activity. IPSO has the power to undertake enquiries but two and a half years later has not mounted one and seems determined not to do so.
IPSO is the fourth form of self-regulation instigated by the British Press. It does not even command the confidence of all of Fleet Street – let alone the country as a whole. IPSO’s predecessors failed because the press intended them to fail – just not for that failure to become evident to the degree where they had to be consigned to history’s dustbin.
IPSO’s proponents laud it in the same terms as they did the PCC. Which is hardly surprising as it has so much in common with its predecessor whose purpose was also to ensure that those regulated by it may continue to publish fake news with no fear of any sanction that would serve as a sufficient deterrent to misleading the public on seismic constitutional issues by publishing front page headlines like “Queen backs Brexit”.
Jonathan Coad is a consultant at Keystone Law. Follow him @jonathan_coad.