Should MP George Galloway have been allowed to win his libel case against the Daily Telegraph? In answering your question, evaluate the differences in the UK and US systems of defamation.
The history of the law of the media has featured a constant battle between, on the one hand, the desire – indeed, the right – of society to be fully informed of events and matters which are in the public interest, and, on the other hand, the need for suitable remedies to be available where the media unwarrantably threaten or cause damage to reputation. (Carey 2007: 36)
As Peter Carey here argues, balancing the two fundamental human rights of ‘freedom of expression’ and ‘the right to privacy’ has been a constant problem for libel and defamation laws, which have been fought out over key individual cases. As Carey goes on to point out, “crucially, the right is subject to a number of restrictions, such as conditions imposed by law in the interests of national security or public safety and…restrictions for the protection of the reputation and right of others (ibid: 37).
The case of George Galloway V The Daily Telegraph is particularly interesting in this context. It provides a thorough examination of the conflict between freedom of expression and public interest, it tests the flexibility and reliability of the newspaper’s Reynolds defence, and sets a precedent for future UK libel suits, illustrating differences from the US system. In this essay, I will first of all outline the background to the Galloway libel case. I then go on to consider defamation laws in general, differences between the UK and US systems, the Reynolds defence in particular, along with other key cases which have helped to shape the law such as Jameel V Wall St Journal. I conclude with my own consideration, in light of the evidence and rulings, of whether or not Mr Galloway should have been allowed to win his case, and what future precedents this sets for media law.
In 2004, George Galloway, the then MP for Glasgow and Kelvin won £150,000 in legal damages over reports in the Daily Telegraph that he received money from Saddam Hussein’s regime in Iraq. Galloway claimed that he had long opposed the government and denied ever receiving any money. The newspaper’s claim was that it was in the public interest to publish the claims. Mr Justice Eady was “obliged to compensate Mr Galloway…and to make an award for the purposes of restoring his reputation” (cited in BBC 2004: 1). On the other hand, a Telegraph spokesman responded that it was “a blow to the principle of freedom and expression in this country (ibid: 2).
Hadwin and Bloy elaborate in more detail on the background to the case:
The story was prompted by the contents of documents said to be found in Iraqi intelligence files after the fall of Baghdad, which also referred to Fawaz Abdullah Zureikat, who acted in Iraq for the Mariam campaign, an appeal launched by Galloway to pay for medical treatment for a particular Iraqi child, but also to campaign against the war.
Galloway complained that the coverage in April 2003 accused him of being in the pay of Saddam; of making profits personally and secretly from the oil-for-food programme; of asking Iraqi intelligence to up his payments; and using his Mariam appeal as a front to obtain money for himself.
(Hadwin and Bloy 2007: 77)
The judge described the allegations against Mr Galloway as “seriously defamatory” (BBC 2004: 4) and said that “readers would have understood them to mean” (ibid: 4) the following:
Mr Galloway had been in Saddam’s pay, secretly receiving around £375,000 a year.
He diverted monies from the oil-for-food programme, thus depriving the Iraqi people of food and medicines.
He probably used the Mariam appeal, a campaign Mr Galloway used to raise money for an Iraqi girl with Leukaemia, as a front for personal enrichment.
What he had done was tantamount to treason. (ibid: 5)
The ruling in favour of Galloway will have important ramifications beyond this specific case, for laws of libel and defamation in general, as Chris Tryhorn pointed out in his report, “today’s verdict will be watched closely by newspaper editors, media lawyers and industry experts as a key indication of how libel law is developing” (Tryhorn 2004: 3).
Defamation is a wide-ranging law with powers to punish not only individual journalists writing articles, but also newspapers, publishing houses and even those selling the defamatory material. It has been hard to provide a universal definition of what exactly constitutes defamation but Carey draws on that provided by the Faulks Committee on Defamation in 1975:
The publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally (cited in Carey 2007: 39).
This is of course quite a difficult definition to clarify and Carey draws out two further points:
The statement which is alleged to be defamatory must be made to someone other than the claimant – it will not be defamation to call someone a thief and liar if no-one else hears the conversation
The statement must be in the form of words which tends to do one or more of the following
- lower the claimant in the estimation of normal right-thinking people
- expose the claimant to hatred, contempt or ridicule
- cause the claimant to be shunned or avoided. (Carey 2007: 39)
On these pointers, the article can clearly be seen to be defamatory. It publishes an allegation which would significantly, and importantly as an MP, lower people’s reputation of Galloway. In practice, such general principles are usually related to previous cases, when defamation laws have been successfully or unsuccessfully applied. In Berkoff V Burchill 1997 (EMLR139) for example, Berkoff successfully claimed defamation for being called ugly in a Burchill review, as this could ‘cause ridicule’. Cases such as this and the similar Norman V Future Publishing 1998 (unreported) where the singer Jessye Norman again successfully claimed defamation for being called unattractive, show that what is important in UK defamation law is not whether or not the claims are true and can be proven as such, but the effect they are likely to have. As Carey summarises, “An imputation may be defamatory even when it is true (although this will provide a defence for the action), and an imputation is not necessarily defamatory when it is untrue” (Carey 2007: 40-41).
It is worth pointing out differences here (in origin and application) between UK and US defamation laws. In the US, the First Amendment of its Constitution of 1791 guarantees “freedom of speech as an unassailable right of the American people” (cited in Carey 2007: 36). The UK system, with no such fundamental and founding proclamation, has largely worked on a competitive free press taking the opportunity to publish, then being sued and seeing laws and regulations shift and dispute over key cases. The Human Rights Act of 1998 however, draws on the European Convention of Human Rights (Art.10), which provides that everyone has the right to freedom of expression. UK courts are now bound to uphold this law.
Commentators have pointed out the increased protection that US libel laws offer publishers compared to UK laws. As Mark Hancock suggests:
In the UK, a story needs only be published, defamatory and…directly name an individual…even if the facts are provably true…In the US, nobody can win a lawsuit if the published information is true. (Hancock 2008: 1)
The issue of ‘proving truth’ suggests a fundamental difference between the laws.
Hancock also comments on further protection offered by US legislation including “fair comment which is an opinion rather than a provable fact” (ibid: 2). There are grey areas however. Although speech, assembly and petition are protected, freedom of ‘expression’ is not directly mentioned by the US Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (cited in Hadwin and Bloy 2007: 15).
A landmark case in the US was New York Times V Sullivan (1964). The newspaper was sued by the Commissioner of Public Affairs who believed he had been libeled by advertisements to raise funds for the Civil Rights Movement. The court eventually ruled against Sullivan as it could not be proven that the advertisements were “actuated by malice” (16), even if they were true:
The 1964 case New York Times Co. v. Sullivan…dramatically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only if they could demonstrate publishers’ “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.” Later Supreme Court cases barred strict liability for libel and forbid libel claims for statements that are so ridiculous as to be patently false. (US Defamation 2008: 2)
However, despite the different origins, rather than wildly differing law, US and UK cases have had effects on one another. Hadwin and Bloy give the example of Derbyshire County Council V Times Newspapers (1933), which drew on the New York Times v Sullivan ruling to agree that “it was of vital importance in a democratic society to be able to criticize public bodies without the constant fear of defamation action hanging over the media” (ibid: 16). This is of particular importance with the contemporary media, which may find national law increasingly difficult to implement in cases of new media sources which cross and network national boundaries. Or in another situation, as Pallister has argued, while discrepancies exist with national defamation laws, there will be the potential for “libel tourism” as wealthy people simply move to the country with the greatest opportunity for the success of their case. These shifts in law illustrate changes in emphasis over whether allegations are true, whether it is known they are true, whether they can be proven true and whether they are responsible, which I will return to in my concluding analysis.
In the Galloway case, Hadwin and Bloy point out that “The Daily Telegraph had hoped to qualify for a Reynolds (now ‘public defence’) defence of qualified privilege for its news reports. It also lost a fair comments defence” (Hadwin and Bloy 2007: 77). The Reynolds law, so-called after a House of Lords case in 1999, defends journalists who have defamed someone while delivering a news story, which is in the public interest. The law accepts a conflict between the protection of private reputation and the right to freedom of expression, but with certain provisos as stated in the terms of s.14 of the Defamation act of 1996:
This section of the act bestows total protection upon a journalist when reporting court proceedings providing the report is a ‘fair and accurate’ report of proceedings in public before a court to which the section applies, if published contemporaneously with the proceedings. (Hadwin and Bloy 2007: 55)
As Hadwin and Bloy go on to elaborate, ‘contemporaneously’ in this case can mean “as soon as possible after the proceedings for the day have finished, or even while they are going on if you are reporting for example, in the lunchtime news or in a daily edition of a newspaper” (ibid: 55). The Reynolds case is seen as a landmark in its emphasis on the freedom of expression (with reference to the Human Rights Act of 1988) over personal privacy and protection of reputation. It led to a ten point list against which defamation cases can be tested. The points can be summarized like this:
- The seriousness of the allegation
- The nature of the information
- The source of the information
- The steps taken to verify the allegation
- The status of the information
- The urgency of the matter
- Whether comment was sought from the claimant
- Whether the article contained the claimant’s side of the story
- The tone of the article and the journalist
- The circumstances and timing of the publication
There has been controversy over these points, mainly over the fact that rather than guidance they had been taken up by judges as ‘tests’ or ‘hurdles’ which must be passed before the defence can be used. This was not Lord Gray’s intention however when he established the factors. As he states:
The requirements of responsible journalism will vary according to the particular circumstances. Depending on the circumstances, factors other than those identified by Lord Nicholls may come into play…
… The touchstone [is] that of the public interest and of responsible journalism, it is then necessary to ask whether in the particular circumstances of the case the publisher has demonstrated that he was acting responsibly in communicating the information to the public.
(cited in Hadwin and Bloy 2007: 57-8)
A key House of Lords ruling for the Reynolds law was Jameel V Wall St Journal. In this case, a foreign claimant came to the UK to sue over allegations of terrorism. As the only sources to go on were ‘anonymous’ then the paper was in danger of losing its case, but was ultimately successful in the court of appeal as, “the article in question was measured and neutral in tone, on matters of high pubic interest and importance” (Carey 2007: 69). Carey remarks on this ruling as a way of avoiding using Reynolds purely as a box-ticking exercise, and instead focusing on points it raises:
- Is the subject mater of the article as a whole in the public interest
- If so, was the inclusion of defamtoary material justifiable
- If so, were the steps taken to obtain and publish the material fair and responsible? (ibid: 69)
In order to analyse the Galloway case then, it can be tested against the ten points of the Reynolds ruling, but it must also be taken into account the specific contexts of public interest and responsibility surrounding the case.
The key elements of the ten points in this case seem to be:
Point one. It is clearly a very serious allegation. As Hadwin and Bloy argue however, this point can be a “double-edged sword as a media defence” (78), as the seriousness of the allegation could be argued as taking it more into the realm of public interest, but also as a more potentially damaging defamation, “The Telegraph’s barrister, James Price QC, said the paper had printed ‘from the standpoint of the public interest and from the standpoint of professional journalism… unquestionably one of the most important stories of a most important time’ (Tryhorn 2004: 1)
Point four. The steps taken by The Telegraph to verify the allegation were deemed in this case to be inappropriate . Zureikat, who featured prominently in the documents, was not contacted to verify the information. The court noted than on the day the claim was made, Channel 4 had managed to interview Zureikat, suggesting that it wouldn’t have been that difficult to approach him for third-party verification. This step then was used against the newspaper’s Reynolds defence
Point six. The judge also considered that running the story so quickly, without taking time to further verify the information was not due to ‘the urgency of the matter’ but was more due to the sensationalism and competitive nature of reporting a ‘scoop’. This was not deemed appropriate as a reason for running the story, so again worked against the newspaper’s defence.
Point seven. The judge was particularly dissatisfied with the comments sought from the claimant himself, and this proved to be another major problem for the newspaper’s Reynolds defence. The court ruled that Galloway was misinformed as the newspaper told him that reports suggested that money went from the oil for food campaign to the Mariam campaign but not that he gained personally or about the libel ‘sting’. As Hadwin and Bloy report, “the judge deemed this disingenuous” (Hadwin and Bloy 2007: 78). This also leads to a failure over Point eight for the defence, where the reporter’s conversation with Galloway was heavily analysed, leading to the conclusion that Galloway was misrepresented.
Point ten was another interesting point, with the tone of the article coming under scrutiny. It was accused of portraying Galloway as guilty rather than under trial, using loaded terms such as “damning” and “bluster”, which were seen as detrimental to the supposed neutrality of the piece.
Regarding the more general rules suggested by Lord Gray in the aftermath of the Jameel case, it certainly passed the first test of being in the public right to know. Allegations against a senior MP in connection with a dossier in Iraq were deemed to be serious enough to merit public interest. It failed however on the test of ‘responsible journalism’. As Hadwin and Bloy point out:
Its Reynolds defence failed because the judge deemed it had: Rushed to print; Not approached obvious third parties for verification; Not put the ‘sting’ of the libel to Galloway in advance of publication and; Rubbished his other responses. (Hadwin and Bloy 2007: 77-8)
As Robert Dougans of Carter-Ruck suggests:
A response, together with publishing some sort of investigation into the veracity of the documents and their claims, would have forced the Telegraph to have published a far less sensationalist article several days after they did in fact publish, In the event that inflammatory documents fall into the hands of a media organisation, they would be best advised to follow this practice if they wish to rely upon a Reynolds defence. (Dougans 2008: 2)
Although Dougans suggested that the case contained “no real surprises for libel law” (ibid: 2), the outcome of the Galloway case suggested that the Reynolds defence was not going to be the powerful journalist defence some suspected it would.
In terms of media law, many important issues were raised, and are still being raised by the case. Firstly, the debate still goes on over freedom of expression versus the public right to know:
Mr Price said the trial provided a test case for whether the news media can claim protection under “Reynolds privilege”. He expressed doubts over whether a victory for Mr Galloway would be upheld by the European court of human rights because of a newspaper’s right to freedom of expression. (Tryhorn 2004: 3)
However, this ‘freedom of expression’ is not a universal right and as in more incendiary cases, such as the recent furore over the Prophet Mohammed cartoons in a Danish newspaper, it must be tempered by responsibility, and awareness of context:
Mr Galloway’s barrister, Richard Rampton QC, countered that freedom of expression was not a licence to publish…It is a freedom to convey information in a responsible way, which the public is entitled to have. There is a proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. (ibid: 3)
This in turn suggests issues over how the article is presented, its tone, manner and language, which were vital here:
Mr Rampton said the Telegraph had rushed into publication without giving Mr Galloway a full chance to respond to the allegations, and accused it of presuming him guilty by the tone of its coverage. (BBC 2004: 2)
There is of course an overlap here between specific legal issues and broader issues of politics and ideology, which both affect the case and are affected by outcomes and coverage of the case itself. In the aftermath of the case, Galloway claimed that the Telegraph’s viewpoint was biased:
Speaking after the case, Galloway launched a tirade against Blair and said the Telegraph had been given a ‘judicial caning’…He said the Telegraph had been motivated by its pro-war position and said it was one of the biggest ‘trumpeters’ of the war…’The Daily Telegraph has been held to account, and what an account it has been. But when is Tony Blair going to be held to account?’ he said to cheers from his supporters. (Tryhorn 2004: 4)
Here he raises the question that it may have been in the interest of the newspaper to defame his name in order to belittle his opposition to the war in Iraq. Galloway draws support for this view by drawing on the large opposition to the War and conflating the newspaper opinion with Blair’s unpopular stance on attacking Iraq.
Another point raised by my analysis, and alluded to specifically in my comparison of UK and US defamation law is that of the truth status of the allegations. Galloway, “told the paper it ‘did not have the guts’ to plead a defence of justification, that is, to prove its allegations were true” (Tryhorn 2004: 4), suggesting that the Telegraph went ahead and published either knowing full well the documents were not true, or knowing that their truth could not be verified. The response by the Telegraph’s defence was to argue that the ‘truth’ or not of the documents was less important than the ‘public interest’ of the story:
Mr Price said that proving the truth of the documents’ contents was beyond the powers of a newspaper…It’s not and never has been any part of the Telegraph’s intention to suggest guilt or to suggest guilt could be established other than by a most careful investigation using powers which a newspaper lacks. No such investigation has yet taken place.. Executive editor Neil Darbyshire said the paper had never argued the allegations were true but said it believed it had the right to publish them…’These documents were published us because their contents raised very important questions at a crucial stage in the war against Iraq’ he said. (ibid, 4-5)
This is an important issue raised by the case, and this separation of the truth of the claims and the right to publish them is specific to UK rather than US law. The defence of the newspaper was that it was beyond their powers to verify the truth of the documents, but as a newspaper, a more important role was to publish the allegations and put them into the public domain. This recalls my earlier reference to cases such as Berkoff V Burchill. According to US defamation laws, the newspaper would have had more defence if its claims were proven as true, but in the UK, an increased focus on responsibility including in particular the tone and timing of the report, rather than the US focus on freedom of expression, led to their failure.
It could be argued that if The Telegraph believed in the evidence of their documentation then they would be entitled to comment on the discovery from the perspective of freedom of expression. Ultimately however, taking all of the above considerations into mind, Galloway was right to win his libel case. Constraints on ‘irresponsible’ journalism are still important in the development of a free and respected press, and the Reynolds defence was not enough to save The Telegraph. Interestingly, it seems that they lost the case more because of the way the story was reported rather than purely the allegations it contained. An interesting development to arise from this is the suggestion that future libel claims will be battled over the tone, subjectivity and wording of news reports, as much as their proof or claims to truth. Recent cases have already shown this, Elton John recently lost his libel case against the Guardian as the newspaper’s criticism of him was described as “ironic” (anon 2008: 1). Rulings such as this may prove vital in the future of libel and defamation.
Bibliography
Anon staff reporter ‘A Victory for irony as Elton John loses libel case’ (2008), Saturday 13th Dec 2008 http://www.guardian.co.uk/uk/2008/dec/13/law-press-and-publishing-elton-john-libel-guardian,
Accessed 13th Dec 2008
BBC News Website, ‘Galloway wins Saddam Libel Case’ (2004), Thursday 2nd December 2004, http://news.bbc.co.uk/1/hi/uk_politics/4061165.stm, accessed 30th Dec 2008
Carey, Peter (2007), Media Law, 4th Edition, Sweet and Maxwell: London
Defamation Act 1996, Chapter 31 (1996)
http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960031_en_1
accessed 3rd Jan 2009
Dougans, Robert (2008), ‘George Galloway Vs Telegraph Group Ltd (Court of Appeal), Carter Ruck: Media and Human Rights Lawyers, http://www.carter-ruck.com/articles/George%20Galloway%20v%20Telegraph%20Group.html
Accessed 2nd Jan 2008
Hadwin, Sara and Bloy, Duncan (2007), Law and the Media, Sweet and Maxwell: London
Hancock, Mark. M (2008), ‘US Vs UK Libel Laws’, http://markhancock.blogspot.com/2008/10/us-v-uk-libel-laws.html
Accessed 2nd Jan 2008
Judgements – Jameel and others (Respondents) V Wall St Journal Europe Sprl (Apellants) (2006) UKHL 44
http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd061011/jamee-1.htm
accessed 3rd jan 2009
Pallister, David (2008) ‘MPs demand reform of libel laws’ Guardian website, Thursday 18th December 2008
http://www.guardian.co.uk/media/2008/dec/18/mps-demand-reform-of-libel-laws
accessed 2nd Jan 2009
Pierce, Andrew and Edwards, Richards, ‘George Galloway may face criminal enquiry’ (2007) Telegraph news website, 18th July 2007
http://www.telegraph.co.uk/news/uknews/1557755/George-Galloway-may-face-criminal-inquiry.html
accessed 2nd jan 2009
Tryhorn, Chris, ‘Galloway wins libel case against Telegraph’ (2004), Thursday 2nd December 2004, Guardian Website, http://www.guardian.co.uk/media/2004/dec/02/Iraqandthemedia.politicsandthemedia, accessed 29th Dec 2008
US Defamation Law (2008)