DEFAMATION
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ARTICLE by Jonathan Coad 
Judgment had been handed down by Mr Justice Eady in the bitterly fought battle between George Galloway MP and The Telegraph over allegations published in April 2003 that he had received money from Saddam Hussein’s regime, which Mr Galloway had always denied. From a legal perspective the important part of the case was how it was defended by The Telegraph in order to avoid being found liable to pay damages to Mr Galloway for the allegations, and the reasons why the judge upheld the claim. The allegations published in The Telegraph were undoubtedly seriously defamatory of Mr Galloway. According to the judge they conveyed to “reasonable and fair minded readers” that:

(i) Mr Galloway had been in the pay of Saddam Hussein, secretly receiving around ,000 a year.

(ii) Mr Galloway diverted monies from the Oil-for-Food programme, thereby depriving the Iraqi people (whose interests he had claimed to represent) of food and medicines.

(iii) He probably used the Mariam Appeal as a front for personal enrichments.

(iv) His actions were tantamount to treason.

Significantly, it was no part of The Telegraph’s defence to claim that any of these allegations were true, or even that there were reasonable grounds to suspect that they were true – i.e. two possible versions of a defence of justification.

The Telegraph’s primary defence was that their coverage of the story had been no more than “neutral reportage” of documents discovered by a reporter in the badly damaged Foreign Ministry in Baghdad. However, the judge had no hesitation in concluding that the nature, content and tone of The Telegraph’s coverage of the discovery and content of the documents which gave rise to the allegations were no such thing, commenting: “They did not merely adopt the allegations. They embraced them with relish and fervour.”

In finding for Mr Galloway, the judge also found that when he was interviewed shortly before publication of the allegations he was not given the opportunity of reading the Iraqi documents beforehand, and nor were they read to him. He did not therefore have a fair or reasonable opportunity to make enquiries or meaningful comment upon them before they were published. All he had was the attempt by The Telegraph’s reporter to summarise the documents concerning the Mariam Appeal which the judge described as “rather garbled”.

The Telegraph also failed to put to Mr Galloway during the course of the interview their intention to publish the allegations of personal enrichment. It therefore failed to give him a proper opportunity to respond in advance to these very serious allegations. It also published his denials in a way which left the reader in no doubt that they were unreliable.

The judge therefore concluded that The Telegraph was under no social or moral duty to make the allegations that it did about Mr Galloway at the time of publication, which it had made no attempt to verify. Accordingly The Telegraph was not protected by common law privilege, and specifically not under the principles set out by the House of Lords in Reynolds v Times.

The judge also rejected any suggestion that the allegations published by The Telegraph were protected by the defence of Fair Comment.

The judge concluded that in order to restore Mr Galloway’s reputation he should be awarded ,000 by way of damages. He also observed that this was almost certainly less than would have been awarded before the recent downturn in libel damages in the last few years, taking into account the European Court of Human Rights’ decision in Tolstoy v United Kingdom, and the Court of Appeal guidance in Elton John v MGN.

The judge’s rejection of the latest attempt to mount a Reynolds style defence to very serious allegations published by a newspaper constitutes a further warning to the media that it will have to abide much more closely by the guidance of the House of Lords in that case before expecting a court to exonerate publications which can have a catastrophic effect on the life of an individual and seriously mislead the public. In particular, if it is to rely on the “mere reportage” defence a newspaper must not both vigorously adopt the allegations as true, and publish the claimant’s denials only contemptuously to dismiss them.

Jonathan Coad, solicitor.

This update is e Simkins Partnership. This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. The simkins website is at www.simkins.com
COMMENT : A number of media commentators argued that the decision by Mr Justice Eady put the laws of defamation ‘back twenty years’ and would inhibit free speech and press freedom. Dan Tench in the Guardian (Media, p14, December 2004) said that Galloway’s success came as an ‘unpleasant shock to the media’ and seemed to ‘dilute the celebrated Reynolds defence’. But it is equally fair to comment that the judge fully acknowledged the Reynolds defence – in fact he applied the ten point checklist set out by Lord Nicholls in the 1999 Reynold’s judgment, but came to the conclusion that on the facts of this case the Telegraph’s reporting was not reasonable or neutral. In the same issue of the Guardian Roy Greenslade argues that a headline ‘MP in Saddam’s Pay Defends Himself From ,000 Villa in The Algarve” had a prejudicial spin and that in this case the Telegraph was unfair to Galloway and arguably inaccurate.