George Galloway v Telegraph Group Ltd (Court of Appeal)

 

The Court of Appeal decision in the Telegraph's appeal has produced no real surprises in the realm of libel law. The decision of the High Court in the field of the developing area of jurisprudence arising out of the Reynolds case was upheld. Also, the Telegraph were unsuccessful in their attempt to reduce one of the largest awards of libel damages since Elton John v Mirror Group Newspapers.

The circumstances surrounding the case are well known. A Telegraph journalist discovered intelligence documents in the abandoned and looted Iraqi Foreign Ministry after the fall of Saddam. These documents alleged that Oil For Food money had been diverted to Mr Galloway's political campaigns. This cloak-and-dagger escapade, together with Galloway's subsequent political career and the continuing controversy about the war's origins, has guaranteed this case a high media profile. The appeal judgment, however, springs no surprises. Delivering the judgment of the Court, Sir Anthony Clarke MR upheld the decision of the High Court on all counts.

The court did accept that the allegations against Mr Galloway were potentially capable of being reported in a way which would be protected by Qualified Privilege. The court held that "If the documents had been published without comment or serious allegations of fact Mr Galloway could have no complaint since, in so far as they contained statements or allegations of fact it was in the public interest for the Telegraph to publish them, at any rate after giving Mr Galloway a fair opportunity to respond to them". 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 sensational 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.

Unfortunately for the Telegraph, however, the Court of Appeal agreed with Eady J that the Telegraph was alleging guilt and adopting the allegations in the documents as its own, rather than calling for an investigation into the claims or reporting the allegations. Worse still, the Court agreed with Eady J that the Telegraph had embellished upon these allegations. Whilst the documents only appeared to suggest that the Mariam appeal and Mr Galloway's campaigning had been funded by Oil For Food money, the Telegraph had gone beyond that and suggested that he was gaining personally from the alleged payments.

The Telegraph were also held not to have put the whole of the allegations to Mr Galloway, and to have failed to put his side of the case in sufficient detail. Notably, the transcript of the reporter's conversation showed that the allegation Mr Galloway had received money for his personal benefit had not been put to him. The allegations were of such gravity that they had to be put to Mr Galloway, even though a denial of taking any money from Saddam might be seen as denying taking money from him for personal gain. His denials were also dealt with unconvincingly by the newspaper-saying they were "bluster" and an attempt to "explain away" the allegations. This was not sufficient and did not count as putting Mr Galloway's side of the case.

Eady J made something of the fact that the Telegraph could have printed this at any time. The allegations were of no urgency, and the Telegraph could have taken their time to investigate the claims and obtain proper comments. Although news is a perishable commodity, in these circumstances there was no need to rush into print. It was not even as if the documents were in any danger-they had been scanned and sent electronically to London. Although Eady J's comments were true of this article, it should be noted that allegations against elected figures will be more topical at some times rather than others. If such material were to appear close to an election, a newspaper might possibly plead it had to inform the public before the polling day.

Before Eady J, James Price QC, for the Telegraph, came up with an ingenious argument that, as the documents could have been printed in a privileged article, the Telegraph should only pay the amount by which Mr Galloway's reputation had been damaged beyond that. This was repeated before the Court of Appeal. The Court found, however, that the publishers would have to bear the consequences of the whole article they had produced, rather than the article they might have produced.

That journalists should take care when writing a story, avoid over-egging the pudding, publish both sides of the story and tailor the story they write to the defence they intend to employ, is scarcely a new lesson. It is, however, one which is reinforced again by the Court of Appeal judgment. It is also worth remembering how far the law has come since the decision in Reynolds. The acceptance by the Court of Appeal that a privileged article could have been written, and the guidance as to how to do it, should be studied by journalists, editors and in-house lawyers and will no doubt be quoted in response to letters of claim. The decision has not changed the law - but it has again demonstrated best practice and the importance of writing a controversial article with a defence in mind.

Robert Dougans