Technology &
Internet Law

Defamation & Limits on Journalistic Privilege

Eady J in the High Court set limits to the privilege afforded by the law to journalists in Baldwin v Rusbridger (Times Law Reports, July 23, 2001) by holding that a journalist has no privilege in replying to criticisms made in court. He concluded that there 'were powerful considerations of public policy against extending the law to give journalists privilege for attacks upon those who had criticised them (journalists) in court.' 

The Facts 

Graham Baldwin had won a defamation case against the Guardian Newspaper. The next day the editor of the newspaper was quoted in it as stating that 'he still had faith in the journalist responsible for the defamatory article, and that the libel laws did not offer sufficient protection to newspapers reporting matters which were "clearly in the public interest"'. Mr Baldwin commenced the second action against the newspaper arguing that by making this statement, it implied that the first defamatory article was justified and that the newspaper had lost  only because of the inadequate and unfair libel laws. This compounded the initial libel, against which the first judgment was thought to have vindicated Mr Baldwin. 

The Guardian's Contention 

The Guardian argued that they were entitled to plead qualified privilege because they 'had a duty to convey to their readers [their] opinion on the original article, the first action and defamation laws.' Moreover, they contended that they should be protected in respect of any defamatory allegations of fact which the newspaper "unwittingly and incidentally" may have included in the second article. 

The Point that was Missed 

Eady J rejected the argument of the Guardian on the basis that it sought to confuse the legitimate right of anyone to canvass his or her opinion on law reform, on one hand, and the fact that the Guardian may have made defamatory accusations relating to Mr Graham, on the other. Only if the Guardian can be said to have 'a duty to publish the defamatory imputations of fact about [Mr Graham] irrespective of the truth or falsity', can it rely on qualified privilege. It was concluded that the Guardian in these circumstances had no such duty. 

Trial By Media: Its Not on

His Lordship observed that 'it was an important aspect of the rule of law that the authority of the duly constituted courts should not be undermined through trial by the media'. A dissatisfied litigant cannot be so easily protected for attempting to continue the debate, outside the courts, thereby undermining a court judgment. This is especially so, said Eady J, where the dissatisfied litigant is a newspaper with such resources, which is seldom at the disposal of the other party, as to make the other parties 'hard-won vindication' nugatory. 

The Significance 

The lesson in this case is that newspapers must not attempt to take a second bite of the cherry by taking the battle to another arena which they control more effectively than they ever can the courts, namely, the media.

NEED TO KNOW MORE?

For further information on defamation, contact Maitland Kalton.  Should you prefer to telephone, call us on +44 (0)207 278 1817.

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