When Facts are True or Reasonably Published
If you are a journalist (editor, publisher or owner of a mass media outlet) you are not safeguarded against lawsuits for compensation for damage caused to someone’s honour, dignity or reputation.
They are a veritable headache and they usually reach you on those nice winter days when sitting in your editorial office you admire the dancing snowflakes, softly humming the Snow Storm by Sviridov. Isn’t that true? Fine, perhaps you ar in the habit of getting them on most usual days but this is not what matters.
When you learn of such a lawsuit against yourself, and after you apply for legal assistance (preferably from a lawyer who has some understanding of this headache), you start thinking of how you are going to defend yourself.
Having carefully reread the disputable article with the help your editor, lawyer, other fellow-journalists, neighbours, friends or any other reasonable person, you make one of the following decisions:
- I have published information, i.e. facts or factual statements and I have sufficient evidence to corroborate the truth of my publication.
- I have published information, my evidence is not sufficient, but the matter is of public interest, I have acted within the frames of professional ethics, in good faith and in a responsible manner. In other words, I have been guided by the principle of ‘reasonable publication.’
- I have published ideas – opinions or value judgments – on a matter of public interest on sufficient factual basis.
When having made the first decision you appear before an independent and impartial tribunal you will most probably not have any problems, and it will not matter if you have defamed somebody maliciously. This may happen when you publish an allegations on somebody’s involvement in bribery when in actual fact you are mad at him, because being your arch-neighbour, he kept harassing you with his horrible music. As long as you can adduce sufficient evidence to prove that he was indeed involved in bribery your personal motives will be irrelevant and will not be used against you.
The situation is more complicated when you decide that you are going to prove that the publication was made reasonably, a principle which in the European defamation law and practice is known as the reasonable publication defence and, the public interest defence, in the British.
What is this defence about? The best explanation of this principle was given in the case of Reynolds v Sunday Times Limited and Others by the House of Lords of theUnited Kingdom, which, apart from being the upper chamber of the British parliament, is also the country’s highest judicial body.
The former Irish Prime Minister Albert Reynolds sued the newspaper Sunday Times for an article published in its English edition, in which he had been accused of deceiving the parliament and his coalition partner. The article did not include his explanations provided to the parliament over this issue. The Irish edition published a more balanced text, including Mr Reynolds’s explanations. When the case reached the House of Lords, they granted the suit and established 10 guiding principles to be taken into account by judges when deciding on defamation cases. However, they were not to be used as hurdles against the exercise by the media of their free speech rights (as was the initial practice of theUK courts).
These guidelines are:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of information, and the extent to which the subject-matter is a matter of public concern. The ‘public’ covers the community within a state, a town, or a village.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information. If no reasonable steps are taken, there can be no word about responsible journalism.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. Geoffrey Robertson, one of the brightest British media lawyers, believes that the plaintiff should not complain if s/he was unreachable for objective reasons or on purpose. Mention about this should be made in the publication. It may not be necessary to contact the plaintiff if s/he is not going to give any explanation or if s/he has already provided one, or if this would endanger your sources, or result in an injunction.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication including the timing. If it is about a coming disaster or food safety, then journalistic haste may well be justified.
The Reynolds case, thus, established that if the information that you possess relates to a topic that is of public concern, if you have taken reasonable steps to verify them and if equally reasonable are your sources, you will not violate any right even if later it is found out that this information was not true. This, however, comes with a condition: absence of actual malice or legal malice. Actual malice implies spite or personal interest while legal malice implies dishonesty or reckless disregard for truth. Reynold, thus, offered a very effective defence to journalists in cases when journalistic sources refused to testify, fearing retaliation or when it was established that the story that appeared truthful to a journalist later turned to be false.
The case of Jameel v Wall Street Journal came to reconfirm the Reynolds public interest defence. In Jameel, James Dorsey who was the Wall Street Journal’s correspondent in Saudi Arabia, learnt from a Saudi businessman that the country’s government had a secret agreement with the US government, in the framework of which the former was monitoring the bank accounts of its largest and most prominent companies. This information was confirmed by an owner of one of the country’s largest banks, a government official and two American diplomats. The correspondent promised them anonymity. Following this, Glen Simpson, the American correspondent of the Wall Street Journal, contacted one of his reliable sources in the US Treasury who did not deny this information. Included among the above large and prominent companies was the automobile company belonging to Mohammed Jameel. A day before the publication Dorsey had contacted the representative of the company who told him that Jameel was not in the country and, therefore, could not be reached. Thus, he was not able to obtain comments from Jameel, and the article was published on the following day under the headline: ‘Saudi Officials Monitor Certain Bank Accounts: Focus is on Those with Potential Terrorist Ties.’ The article mentioned certain names, including that of Mohammed Jameel’s. A civil case was instituted against Wall Street Journal following Jameel’s complaint. The findings of the trial court were against the newspaper and in his reasoning the judge stated the following:
- The article would not have suffered if, instead of names, it had mentioned ‘prominent Saudi businessmen;’
- Since the article disclosed the details of a clandestine US-Saudi governmental agreement, it was not of public interest;
- The journalist could have waited for a few more days until Mohammed Jameel could be reached for comment.
TheAppeal Courtessentially agreed with this line of reasoning. However, when the case reached the House of Lords, the latter decided that the article was an excellent species of a good faith journalism and, by virtue of this, deserved the public interest defence.
In particular, the Lords decided that there was no point in waiting for Jameel’s comments, since the latter would not have known that his bank accounts were being monitored and, consequently, could not have commented on this information. Secondly, the names were important in that they raised the newsworthiness of the publication by revealing that rather than monitoring the bank accounts of some businessmen, the Saudi government monitored those of its most prominent businessmen. Finally, the House of Lords disagreed with the position according to which journalists were under an obligation not to disclose secret agreements between governments, to say nothing of foreign governments.
To sum up, in the case of Jameel, the UK House of Lords reconfirmed the importance of the public interest defence or the defence of reasonable publication by stressing three essential factors: the subject-matter of publication must be of public interest, the application of defamatory expressions must be reasonably justified and the journalist must act in good faith and in a responsible manner.[4
A very useful clarification on the essence of the defence of reasonable publication can be found in the case of Kasabova v Bulgaria. Kasabova was a journalist who had published an article on the issue of corruption in the process of admission to private schools. While the domestic courts had no second thought in convicting Kabasova, the European Court of Human Rights found that
‘the article in respect of which the applicant was convicted and penalised was reporting facts relating to alleged irregularities and corrupt practices in the admission of students to secondary schools. . .There can be no doubt that this was a question of considerable public interest, even sparking parliamentary debates and a hearing before a parliamentary committee . . . and that the publication of information about it formed an integral part of the task of the media in a democratic society.’ (para 56)
Where the issue of whether the applicant had acted in a responsible manner and in good faith, the ECtHR was ready to accept the reasoning of the domestic courts that the applicant had failed to sufficiently study the topic to be able to make such a publication and, had, therefore, failed to satisfy the requirements of responsible journalism. However, the European Court of Human Rights refused to take a decisive stance on this issue due to finding that at any rate the sanction imposed on the applicant by the domestic courts was disproportionate. The European Court of Human Rights, accordingly, found a violation of the right to freedom of expression.
Article 1087.1(5)(2) of the Armenian Civil Code stipulates the defence of reasonable justification in the following terms: ‘The public expression of the statement of fact foreseen by Paragraph 3 of this Article is not regarded as defamation, if: 2) in a given situation and by its substance, it is conditioned by the predominant public interest and if the person having made the statement of fact public, proves that s/he has taken all reasonable actions to find out whether they were accurate or justified, as well as s/he has presented these facts in a balanced manner and in good faith.’
It is also important to understand what is meant by the expression ‘matters of public interest.’ According to the case law of the European Court of Human Rights, included among such matters are issues related to public health, patient safety, abuse by prosecutors, abuse by politicians and local authorities, large commercial entities, etc.
It should not be difficult for journalists to prove to courts that the subject-matter of their publications are of public interest. Judges, on the other hand, may follow the example of the British courts which regard everything except the private lives of private individuals matters of public interest. Quite reasonably, they have accepted that in addition to actions of public bodies and officials, those of private companies’ affecting individual lives are also matters of public concern.
‘Anyone who throws a hat into a public arena must be prepared to have it mercilessly, though not maliciously, trampled upon,’ is Geoffrey Robertson’s irresistibly witty comment on the UKjudicial practice over this issue.
 Reynolds v Times Newspaper Limited and Others, 28 December, 1999, http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey03.htm
 See G. Robertson, QC, and A. Nicol, QC, Media Law, Penguin Books, 2008, p. 166.
 Ibid, p. 160.
 Ibid, pp. 161-164
 Kasabova v Bulgaria, Application No 22385/03, para 68.
 Gavin Millar, ‘Freedom of Expression: Training inYerevan, November 2011,’ p. 10.
 Hertel v Switzerland, Application No 25181/94, 1998.
 Selisto v Finland, Application No 56767/00, 2004.
 Rizos and Daskas v Greece, Application No 65545/01, 2004.
 Lingens v Austria, Application No 9815/82, Cumpana and Mazare v Romainia, Application No 33348/96, 2004.
 Steel and Morris v United Kingdom, Application No 6841/01, 2005.
 G. Robertson, QC, and A. Nicol, QC, Media Law, Penguin Books, 2008, p. 155.