Leech judge gives more leeway to media on libel defence

A High Court judge has set out a more liberal interpretation of the law in relation to the circumstances in which the media may defend the publication of certain material, even if that material is incorrect, on grounds that publication was in the public interest.

Mr Justice Peter Charleton said he believed there was a general public interest in the public receiving information - even if that information turned out to be incorrect - on matters of public interest, such as their safety and security and their right to judge public representatives fairly "on the basis of real information".

There was also a duty on journalists to responsibly gather and responsibly report such information, he said. The conduct of journalists in relation to how they gathered and reported information should be taken into account in determining libel claims.

The judge's detailed ruling made this week in PR consultant Monica Leech's unsuccessful defamation proceedings against the Irish Independent will have significant implications for other media organisations in defending libel claims.

The judge delivered the ruling in the absence of the jury after lawyers for Ms Leech objected to the Irish Independent making such a defence. The ruling could not be reported until the conclusion of the proceedings.

Among the issues addressed by the judge in his ruling were whether a defence of public interest exists in defamation proceedings and, if so, how was it to be defined.

The judge said the test in relation to qualified privilege involved a situation where one side has an interest in receiving information and another party has a duty to pass the information on to them.

Even if it turned out that information was incorrect, qualified privilege still arose if there was an interest in receiving it and a duty to impart it.

The judge noted the defence of qualified privilege was developed in the libel action brought by former taoiseach Albert Reynolds against Sunday Times Newspapers in 2002. An issue arose in that case whether there was such a thing as a general interest in favour of the public receiving information, even if it was incorrect.

He believed there was such a general public interest, the judge said. The public had an interest in many matters as opposed to "being interested" in matters. Being interested would refer to matters which were merely titillating or salacious gossip.

On the other hand, matters of public interest had to be matters affecting the governance of the country, public safety, security and the public right to judge their public representatives fairly on the basis of real information, the judge said. That was not an exhaustive list, he added.

A number of tests arose in the Reynolds case in relation to whether the public interest defence could be successfully argued. These included the seriousness of the allegations, the nature of the information, the extent to which it is a matter of public concern, the status and source of the information, the steps taken to verify it and the urgency of it.

Other tests included whether comment was sought from the person alleging libel, although an approach to them, he added, would not always be necessary. The tone of the article was also relevant as a newspaper could raise queries or call for an investigation without adopting allegations as statements of fact.

Since those tests were set out in Reynolds, some errors had been made in interpreting them, including a view that if one or more of them was missing, then the entire defence was destroyed.

The judge referred to the House of Lords judgment in the 2005 Jameel case which set out a test involving an examination of the professional conduct by the reporting journalist or other party. On the basis of those decisions, he ruled that a public interest defence can arise where the subject matter of a publication, radio or TV report, "considered as a whole", was a matter of public interest.

He also ruled there was a professional duty on the part of journalists to both seek out information of public interest and to impart it to the public. While that was a matter for professional skill and training, it was also "a matter of responsibility".

Once a public interest is established in relation to the information in the article, a further test has to be met - whether, on the evidence, the steps taken to gather and publish the information were responsible and fair, he said.

In addressing that issue, some of the tests in the Reynolds case may be taken into account, particularly whether the article contained the plaintiff's side of the story.

A court or jury, when deciding whether there was fair and responsible conduct by the media, also had to have regard to the practical realities of newsgathering, the judge said. Urgency could be a matter of importance in news reporting.

In relation to the Leech case, the judge also addressed the scope of the material either side could rely on. He noted many articles had been written about the scope of Ms Leech's dealings with minister Martin Cullen prior to the Irish Independent article of December 17th, 2004, which was the subject of the case before him.

He said he was very influenced by the principle of "isolating damages". He believed in confining damage in a defamation action to that allegedly resulting from the words published on the particular occasion and excluding damage to reputation caused by other publications. It would be irresponsible to allow Ms Leech refer to other articles in relation to which she is also claiming damages, he said.

Later in the case, after being told that Independent Newspapers did not propose to call any evidence, the judge ruled it could not therefore make a public interest defence. He had earlier said it may be that the public interest defence could only be made out in circumstances where a genuine public interest is established. He also said that, when a public interest defence is pleaded, particulars of that defence should be given in line with the Jameel case test - relating to the professional conduct of the reporting journalist.