Protection for journalists
Graeme McLagan's court victory is another step along the long and rocky path of bringing the laws of libel in line with the laws of common sense.
McLagan, a former BBC journalist, had written a book about police corruption. A former policeman who McLagan names in the book had successfully sued the author and his publisher for libel. Yesterday, the Court of Appeal overturned that decision and ruled instead in McLagan and his publisher's favour.
The case hinged on something called the ‘Reynolds Defence’ - a phrase on the lips of most journalists and some lawyers but not necessarily a subject of nightly conversation in the Dog and Duck.
Briefly, the Reynolds Defence is named after a defence raised in the late 1990s by Times Newspapers after the Sunday Times published an article about the former Irish prime minister, Albert Reynolds. Mr Reynolds sued, arguing the allegations in the article were not true and were defamatory. The newspaper argued that the allegations it published were serious and that it had a duty to publish them. They were, it argued, made in the public interest and after they'd exercised all reasonable care in checking. Even if the allegations were not true, they argued they should have been able to report them and be legally protected by 'qualified privilege'.
In 2001, the Law Lords decided that the Reynolds Defence was a valid one, subject to certain conditions. Crucially, for the defence to be successful the journalism had to be careful, its tone sober, its subject important and of urgent public interest. In other words, it had to be good journalism. It was not a charter for publishing tittle-tattle.
It was a defence that the Wall Street Journal raised when it was sued by a Saudi Arabian businessman Abdullah Latif Jameel and his companies. Initially the defence failed - but was finally successful on appeal to the House of Lords. In their judgement, the Law Lords seemed to move the law even further in defence of careful, sober, investigative journalism, also recognising the principle that journalists work in a pressured atmosphere in which the life of a news story is limited.
It is a stance that recognises the essential disadvantage an investigative journalist faces in breaking a story that someone, somewhere would rather was not broken. The libel laws in the UK notoriously favour those with the money or motive to make life tough for a journalist bent on disclosure and a public bent on transparency. The late Robert Maxwell was ruthless in his use, and threats, of libel actions to deter journalists from printing what we now know was the truth about him and his business methods.
An important feature of the McLagan ruling, though, is that the Reynolds Defence has now been extended to longer-form and longer-term journalism, and is not now limited - as some assumed after the Wall Street Journal case - to the rough and tumble of daily news.
The key point, though, remains; that this defence is only available to careful, considered journalism. As one of the Appeal Court judges put it, criticising the judge in the original case: “I do not see in this judgment any sufficient allowance made for McLagan's honesty, his expertise in the subject, his careful research, and his painstaking evaluation of a mass of material.”
"Honesty", "expertise", "careful", "painstaking" all describe Graeme McLagan's methods precisely - I know, I worked closely with him in the 1980s on documentaries about the IRA, spying and the Official Secrets Act; a fact checked and corroborated only twice or three times was still, in his view, unverified. Yesterday's ruling now - properly - offers a greater degree of protection to journalists who fit that description.