TIMES NEWSPAPERS LTD v. THE UNITED KINGDOM (Nos. 1 AND 2)

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 23676/03 and 3002/03

by Times Newspaper Ltd
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:

MrJ. Casadevall, President,
SirNicolas Bratza,
MrG. Bonello,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above applications lodged on 28 July 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Times Newspaper Ltd, is the proprietor and publisher of The Times. It was represented before the Court by Messrs Reynolds Porter Chamberlain, a law firm in London.The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The Articles

On 8 September 1999 The Times published a report headlined “Second Russian Link to Money Laundering”. This report stated:

“British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York.

Investigators are understood to be looking at links to Grigori Lutchansky[1], whose company, Nordex has been described by the CIA as an “organisation associated with Russian criminal activity”.

Mr Lutchansky’s name surfaced in earlier money-laundering investigation which may have links to the Bank of New York affair, in which millions of dollars of Russian money are alleged to have been laundered.

The Russian born businessman came to the attention of European and American investigators in the early Nineties. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London.

Mr Lutchansky has repeatedly denied any wrongdoing or links to criminal activity.

Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet union and another 40 companies in the West.

The Times has learnt that these included between eight and ten off-shore companies in British jurisdictions, including the Channel Islands and the Isle of Man.

They were administered through a chartered accountant in central London whose offices and home were raided in 1996 by officers from the City of London Police.

The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant.

At about the same time a Yugoslav associate said to have been a front-man for Mr Loutchansky was stopped and questioned after arriving at a London airport. No charges were filed against him.

The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through off-shore companies controlled by Nordex was linked to criminal activities..

Mr Loutchansky is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993.

He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.”

On 14 October 1999 The Times published a second article entitled “Trader linked to mafia boss, wife claims”. This report stated:

“A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of Grigori Loutchansky, a suspected mafia boss, the businessman’s wife claims.

Lev Chernoi, the aluminium magnate under Swiss investigation, was given access to staff and a chauffeur by Mr Loutchansky when he moved to Israel, according to Lysudmila Chernoi, Mr Chernoi’s estranged wife...

If Mrs Chernoi’s allegation about a connection between her husband and Mr Loutchansky is true it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by Mr Loutchansky and alleged to have been used to launder money and smuggle nuclear weapons, as an ”organisation associated with Russian criminal activity”.

In 1996 Mr Loutchansky triggered a row in America after a photograph was published of him with President Clinton in 1993. Mr Loutchansky has denied any wrongdoing.”

2. The Commencement of the Proceedings

Each article was posted on the applicant’s website on the day it was published in its newspaper. On 6 December 1999 Mr Loutchansky brought proceedings for libel (“the first action”) in respect of each article (“the articles”) against the applicant, Peter Stothard, the editor of The Times, and David Lister and James Bone, the two journalists under whose by-lines the articles appeared. In their defence, the defendants accepted that the articles were defamatory, they did not seek to justify any aspect of them and they recognised that they could not obtain sufficient admissible evidence even to prove reasonable grounds for suspicion. Instead they relied solely on the defence of qualified privilege, contending that the allegations were of such a kind and such seriousness that they had a duty to publish them and that the public had a corresponding right to know them.

While these proceedings were ongoing the articles remained on the applicant’s website, where they were accessible to all internet users as part of the applicant’s archive of past issues. On 6 December 2000 Mr Loutchansky brought an action for defamation in relation to the continuing internet publication of the articles (“the second action”). Initially, the defendants’ only defence was one of qualified privilege. The two actions were consolidated and set down for a split trial on issues of liability and then quantum.

The articles remained on the internet archive although, on 23 December 2000, the applicant added the following preface to the first article:

“This article is subject to High Court libel litigation between Grigori Loutchansky and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”

3. The ‘New Evidence’ Ruling

Some time after pleading their defence to the first action, the defendants obtained further evidence including (i) the reasons why Mr Loutchansky was excluded from the United Kingdom; (ii) the Home Secretary’s views on Mr Loutchansky’s exclusion; (iii) an Israeli police report; (iv) an Austrian police report; (v) a report by Interpol; (vi) the views expressed by the Israeli Government about Mr Loutchansky. They therefore applied to amend their defence. They still did not seek to justify the articles but argued that the new evidence was relevant because it amplified the reasons why the public was entitled to know the allegations against Mr Loutchansky.

On 22 January 2001 the High Court refused the application. The court observed that, as a matter of logic, the question of whether or not the applicant was under a duty to publish the allegations should be determined at the date of publication. He then went through the case-law on qualified privilege and concluded that it supported the conclusion that a defendant could not rely, in support of an alleged entitlement to privilege, on facts of which he was unaware at the time of publication. Such a conclusion would provide certainty and would encourage higher standards of journalism.

The defendants appealed and, on 12 March 2001, the Court of Appeal dismissed their appeal and upheld the reasoning of the High Court: evidence acquired after publication was admissible to a defence of justification but not to a defence of qualified privilege. On 16 May 2002 the House of Lords refused permission to appeal.

4. The Single Publication Ruling

In or around March 2001 the Defendants applied to re-amend their defence in order “to contend that as a matter of law the only actionable publication of a newspaper article on the internet is that which occurs when the article is first posted on the internet” and that, as a result, the second action was barred by section 4A of the Limitation Act 1980.

On 19 March 2001 the High Court rejected this application, relying in particular on the authority of Duke of Brunswick v Harmer ((1849) 14 QB 154) which sets out the common law rule that each publication of a defamation gives rise to a separate cause of action (“the rule in the Duke of Brunswick’s case”).

5. The Liability Trial

On 20 March 2001 the High Court found that the applicant had no reasonable grounds for contending that after 21 February 2000 (the date of the applicant’s defence in the first trial) they remained under a duty to publish the articles on the internet. As a result, it struck out the defence of qualified privilege in relation to the second action and, on 27 March 2001, entered judgment for Mr Loutchansky, for damages to be assessed. By this time the applicant had removed the articles from their website.

A jury was empanelled to deliver answers to various questions of primary fact relevant to the first action. After hearing evidence the jury delivered its verdict on 11 April 2001. Following argument on the test of qualified privilege in the light of the jury’s answers, the High Court ruled on 27 April 2001 that the defence of qualified privilege was not made out and gave judgment for Mr Loutchansky in relation to the first action, for damages to be assessed.

The High Court’s judgment reviewed the case-law on qualified privilege. In particular, the judge restated the words of Lord Atkinson in Adam v Ward ([1917] AC 309, at 334) that:

“[A] privileged occasion is an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it.”

He then added his own gloss on this test, saying:

 “I take that form of duty, albeit one not owed at law, to be a duty such that a publisher would be open to legitimate criticism if he failed to publish the information in question.”

He then went through each of the factors identified in Reynolds v Times Newspapers ([2001] 2 AC 127, at 205 A-C -“Reynolds”) and concluded that neither article was protected by qualified privilege.

6. The Court of Appeal

The defendants appealed against the High Court’s rulings on both the “the single publication” and “qualified privilege” points.

In the single publication appeal, the defendants argued that the rule the Duke of Brunswick’s case breached Article 10, pointing out that, as a result of the rule, newspapers which maintained internet archives were vulnerable to claims in defamation for years and even decades after the initial hard copy and internet publication. They said that this would inevitably have a chilling effect on the willingness of newspapers to provide internet archives and thus would limit their freedom of expression. In its judgment dismissing the appeal, of 5 December 2001, the Court of Appeal stated:

“We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.”

On 30 April 2002 the House of Lords refused leave to appeal in this single publication action.

However, in the qualified privilege action, the Court of Appeal allowed the appeal stating:

“49. To apply the test [i.e. the ‘legitimate criticism’ test cited above] merely as a “cross-check” is unexceptionable where the test is satisfied. If, indeed, the publisher would have been open to legitimate criticism had he not published, his claim to privilege will be indisputable. But the converse is not true. That would be to impose too stringent a test. There will undoubtedly be occasions when one newspaper would decide to publish and quite properly so, yet a second newspaper, no less properly, would delay or abstain from publication. Not all journalists can be or should be expected to reach an identical view in every case. Responsible journalism will in certain circumstances permit equally of publication or of non-publication.

50. We therefore conclude that Gray J applied the wrong test to the question whether there was a duty upon the appellants to publish these defamatory articles to the world at large. He was right to grant permission to appeal to clarify the standard. The standard required is that of responsible journalism...”

The case was remitted the case back to the High Court to re-examine its findings of fact with the correct standard in mind.

7. The Re-Hearing

On 26 November 2002, following argument by both parties, the High Court gave judgment for Mr Loutchansky again, holding that neither of the articles was protected by qualified privilege.

In relation to the first article, the judge had regard to the ten factors identified in Reynolds and found as follows:

“1) The seriousness of the allegations

Each of the allegations against the claimant, involving as they do serious international criminal activity, is in terms of seriousness at the upper end of the scale...

2) The nature of the information and the extent to which it was of public concern

[T]he information contained in the Times article of 8 September 1999 that a named second businessman was under investigation by American and British agencies over his possible involvement in laundering billions of dollars of Russian money was a matter of some legitimate interest to Times readers. So too was the information that a company owned by the same businessman had been the subject of earlier investigations into alleged money laundering. To that extent the subject matter of the article was of public concern...

3) The reliability and motivation of the sources

I [turn] to the four sources on which Mr Lister placed reliance...

[I]t would be unsafe to place much reliance on the first source [because] a significant part of the information [he] provided ... turned out to be plain wrong; ...[he] was tentative about the information he provided and [he] had not been personally involved in any investigation of [Mr Loutchansky]...

Mr Lister was entitled to treat the second source as being reliable in relation to the information that [Mr Loutchansky] had been investigated by British police in the 1990s on suspicion of money laundering through off-shore companies set up by Nordex [but not] the information ... that Nordex were still under investigation [because] he left the police service some years before; ... he told Mr Lister he “never knew anything about Loutchansky himself” and ... he said he was only telling Mr Lister what he “believed” to be the position.

Mr Robinson, being a writer, was not in a position to have access to privileged information...Mr Robinson approached Mr Lister and not vice versa. ‘The Merger’, had very recently been published and it would be natural for Mr Robinson to have wished to obtain publicity for it in the columns of the Times...there was evidence that Mr Robinson said he wanted the Times to review it. In these circumstances I remain of the opinion that Mr Lister should have been on guard as to information provided by Mr Robinson in case he was talking up the information in his possession for purposes of his own. This risk should have been more apparent because of the discrepancy between what Mr Robinson told him and what he had written in “The Merger”

Mr Lister was entitled to regard the third source as a reliable source but..., even so, the defendants ought as a matter of prudence to have obtained reliable corroboration of the information which she provided...The desirability of obtaining corroboration arises in part in my judgment from the way in which Mr Lister said that the third source provided the information. He described her as having been “slightly cryptic” during the conversation and as having communicated by “nods and winks”...Even if a form of words had been agreed, as Mr Lister claimed, there appears to me to have been ample scope for misunderstanding. It has to be borne in mind that there was no suggestion by Mr Lister that the third source claimed to have been involved in the FBI investigation into [Mr Loutchansky] or even to have personal knowledge of any such investigation...I see no reason why it should have been particularly difficult, still less impossible, for Mr Lister to have obtained corroboration of what the third source had told him. The evidence in this case suggests that the fact of such an investigation is by no means always a closely guarded secret. Mr Lister had a number of sources in the law enforcement field and Mr Bone had three well-placed sources in the United States. There was no evidence that Mr Lister contacted any of them after he spoke to the third source ... and before the first Times article was published.

4) The steps taken to verify the information

There was little evidence of Mr Lister having taken step to verify the verify the most damaging imputations against [Mr Loutchansky]...I am of the opinion that a responsible journalist would have sought verification more energetically than...Mr Lister did.

5) The status of the information

It seems to me to be important to understand what Lord Nicholls in Reynolds meant by “the status of the information”. It appears to me that he had in mind the important distinction between “unverified information from unidentified and unofficial sources” ... on the one hand and information found to be true after an investigation which commands respect on the other hand...[T]he information which formed the basis of the first Times article, consisting as it did of cuttings and information provided by the four anonymous sources to whom I have referred, was “relatively low grade” [in that it] fell far short of being established or substantiated or even supported by any documentary or other first hand evidence...

6) The urgency of the matter

...[T]here was no real urgency about the publication of the story such as to justify publication without further attempts to verify what the third source had said and without further efforts to obtain comments from or on behalf of the claimant...

7) Whether comment was sought from the Claimant

...To the extent that attempts were made to contact either the claimant or Nordex or their lawyers, they were in my opinion far less diligent than was required by the standards of responsible journalism...If indeed Mr Lister had wanted to contact Mr David Cooper [a lawyer who had acted for Mr Loutchansky] that should have presented no problems since Mr Cooper was at the time a partner in a well-known law firm...

8) Whether the article contained the gist of the claimant’s side of the story

...[G]iven the seriousness of the unproven allegations to be published about the claimant, the bare statement that “Mr Loutchansky has repeatedly denied any wrongdoing or links to criminal activity” was insufficient...In particular the article could and, failing all else, should have repeated what [Mr Loutchansky’s] American lawyer was quoted as having said in an article published in the Washington Post, namely that everywhere in Europe that the allegation that the claimant had ties to organised crime had been reported, he had either sued and won or it had been retracted.

9) The tone of the article; 10) The circumstances of the publication including the timing

...I remain of the opinion expressed in my previous judgment [i.e. that “no criticism can sensibly be made of the tone of the article...and there is no basis for any suggestion that the publication of the article was timed so as to cause particular damage or embarrassment to Mr Loutchansky”].

Conclusion as to the first Times article

I now have to ask myself, in the light of my largely unchanged conclusions as to the ten Reynolds factors, whether the defendants behaved responsibly in relation to the publication of the first Times article. In answering that question I ...take account of the damage to society consequent upon setting the standard of responsible journalism too high. The question is whether, irrespective of its truth or falsity, it was in the public interest to publish that article. I remind myself of the deterrent effects, both in relation to the article sued on and future publications, of rejecting the defence of qualified privilege.

Applying that test and taking account of my conclusions as to the ten Reynolds factors, I have concluded that the publication of the Times article was not protected by qualified privilege. I have accepted that money laundering, as well as the other international criminal activities mentioned in the article, are matters of legitimate public concern. But implicating the claimant in misconduct of the utmost gravity was manifestly likely to be highly damaging to his reputation. Accordingly a proportionate degree of responsibility was required of the journalist and editor before giving currency to such allegations. For the reasons which will be apparent from paragraphs 27-53 of this judgment [cited above], I cannot accept that the requisite standard of responsibility has been shown on the part of those involved in the publication of the first article.”

In relation to the second article, the judge said it fell “well short of the standard of responsible journalism required by recent authorities”. He said:

“First and foremost, the sole source of the story was Mrs Chernoi, the wife of the Russian businessman said in the article to be under investigation for money laundering. It should have been obvious to any responsible journalist that she was highly unlikely to be a reliable source of information about her husband. As Mr Lister knew, Mrs Chernoi was in the throes of divorce proceedings with her husband. It had apparently been alleged against her that she had paid £400,000 to have him killed....Despite these alarm bells, the defendants published the second article, containing as it did grave allegations against Mr Chernoi and taking the opportunity to reiterate even graver allegations against the claimant, without any verification or corroboration of what Mrs Chernoi had told Mr Lister...[T]he second article fell well short of being a matter of legitimate public concern. [I]t reported that [Mr Chernoi] had been provided by [Mr Loutchansky] with staff and a chauffeur at some unspecified time in the 1990’s. Given that such is the extent of the “link”, I am not impressed by the argument that the story was of public concern because it linked two people who are suspected of large-scale money laundering.”

On 24 January 2003 the Court of Appeal refused to leave to appeal. The case never went to a damages hearing as Mr Loutchansky and the defendants settled out of court.Relevant domestic law and practice

1. Relevant legislation

Section 4A of the Limitation Act 1980 provides as follows:

“no action for libel or slander, slander of title, slander of goods or other malicious falsehood shall be brought after the expiration of one year form the date on which the cause of action accrued.”

This section is subject to the provisions of section 32A of the same Act which provides:

“(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court my direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.

(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to-

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A-

(i) the date on which any such facts did become known to him, and

(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

(c) the extent to which, having regard to the delay, relevant evidence is likely-

(i) to be unavailable, or

(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.”

2. Relevant Case-law

(a) The Rule in the Duke of Brunswick’s case

Duke of Brunswick v Harmer ([1849] 14 QB 185) lays down a common law rule of some significance as regards the accrual of a cause of action in defamation. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was then six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch’s office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The Court held that the delivery of a copy of the newspaper to the plaintiff’s agent constituted a separate publication in respect of which suit could be brought.

In Godfrey v Demon Internet Limited ([2001] QB 201) the respondent brought an action in defamation against the appellants who were internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The issue was whether the appellants had a defence under section 1(1) of the Defamation Act 1996. The judge held that they did not. He observed at p. 208:

“In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants’ customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer.”

In Berzovsky v Michaels ([2000] 1 WLR 1004) the issue was whether England was the appropriate forum for bringing an action in relation to a defamatory article published in an American business magazine of which only relatively few copies were ever distributed in England. In the course of their judgments, Lord Steyn, Lord Hoffmann and Lord Hope (at pp. 1012, 1024 and 1026, respectively) each observed that, according to the English common law, a separate cause of action arose in respect of each publication of the article.

(b) Qualified Privilege

The leading case on the defence of qualified privilege is Reynolds v Times Newspapers (cited above). In the leading judgment before the House of Lords, Lord Nicholls of Birkenhead began by giving an overview of the history of the defence (op. cit. at 192F-193A; 193H-194B; 194F-195B):

“Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person’s reputation is actionable. The plaintiff is not required to prove that the words are false...

The common law has long recognised the ‘chilling’ effect of this rigorous, reputation protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.

One established exception is the defence of comment on a matter of public interest...

The defence of honest comment on a matter of public interest ... does not cover defamatory statements of fact. But there are circumstances, in the famous words of Parke B. in Toogood v. Spyring (1834) 1 C.M. & R. 181, 193, when the ‘common convenience and welfare of society’ call for frank communication on questions of fact. In Davies v. Snead (1870) L.R. 5 Q.B. 608, 611, Blackburn J. spoke of circumstances where a person is so situated that it ‘becomes right in the interests of society’ that he should tell certain facts to another... When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged...

The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted:

’a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.

The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice...”

He then turned to the submissions in the particular case and said (op. cit. at 201C-202F):

“The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe [1975] A.C. 135 sense...  

In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation...

With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff’s ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a ‘scoop’, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression...

[T]he common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.

Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may ‘chill’ the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection.”

Having reviewed the case-law of this Court, he described the following applicable principles (205A-F):

“Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

1.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.

2.The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3.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.

4.The steps taken to verify the information.

5.The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6.The urgency of the matter. News is often a perishable commodity.

7.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.

8.Whether the article contained the gist of the plaintiff’s side of the story.

9.The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.

In general, a newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

The test delineated in Reynolds has been applied in several cases since. In, for example, GKR Karate v Yorkshire Post ([2000] 1 WLR 2571), the defendant, a local newspaper, wrote an article claiming that the claimant, a karate teacher, “ripped off” his clients. The defendant’s source was the administrator of the local karate governing body. The High Court examined all ten factors identified by Lord Nicholls (“the Reynolds factors”) and then concluded that the defendant was protected by qualified privilege, despite the fact that it had only tried once (unsuccessfully) to contact the claimant before publishing the story, because (i) it was a community paper and the story was of legitimate interest to the people who read the paper; and (ii) the source for the story was very respectable.

Gilbert v MGN ([2000] EMLR 680) concerned an article, published by the defendant, claiming that one of the claimant’s sub-contractors used child labour. The defendant then published two follow up stories – the first said that the claimant was going to investigate the accusations against the sub-contractor; the second said (incorrectly) that the claimant had broken its promise and failed to investigate. The source for this last story was the sub-contractor themselves. The court once again examined the Reynolds factors and held that the defendant was not protected by qualified privilege because (i) the source was unreliable (because they had an axe to grind); (ii) inadequate steps had been taken to verify the story; (iii) there had been no urgency; (iv) the claimant had not been given the opportunity to comment; and (v) the claimant’s side of the story had not been presented.

The claimant in Lukowiak v Unidad Editorial SA ([2001] EMLR 46) was a soldier in the Falklands war. He wrote a book in which he described killing an Argentinean soldier after the Argentineans had “jacked”. An article appeared in Pagina 12, an Argentinean newspaper, saying that an Argentinean judge had applied to have the claimant extradited (from the United Kingdom) for war crimes. The defendant repeated these allegations but was unable to establish their truth. Nonetheless, the High Court held that they were protected by qualified privilege because the allegations were of legitimate interest and because the defendants were entitled to repeat the information given in the report of Pagina 12 without performing further checks, because Pagina 12 was a respectable newspaper and because to expect the defendants to have performed further checks would have been to impose too high a standard of care.

The defendant in Al-Fagih v HH Saudi Research & Marketing UK Ltd ([2002] EMLR 13), a Saudi newspaper said to support the Saudi government, reported on a dispute between the claimant and AM, who were both leading members of a Saudi dissident organisation opposed to the Saudi Government. The defendant had reported that AM had alleged that the claimant had spread malicious rumours about AM and, later, the claimant’s response. The claimant sued for libel. On appeal the Court of Appeal held that the defendant was protected by the defence of qualified privilege because (i) the dispute between the two was political and of general public interest; (ii) both sides to the dispute were reported evenly; and (iii) the allegations against the claimant were not presented as true.

COMPLAINTS

A. The applicant complained under Article 10 that the striking out of its defence of qualified privilege in the first action violated its right to freedom of speech; and

B. It further complained under that Article that the application in the second action of the rule of domestic law, allowing for a new cause of action to accrue every time a defamatory article was accessed on the internet, violated its right to freedom of speech.

THE LAW

Article 10 provides insofar as relevant:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others...”

A. The complaint in relation to the defence of qualified privilege

The Court considers that the High Court’s entering of judgment against the applicant on 26 November 2002, for damages to be assessed, constituted an interference with the applicant’s right to freedom of expression guaranteed by Article 10 § 1 of the Convention.

1. Was the interference "prescribed by law"?

(a) The applicant’s submissions

The applicant did not dispute that the High Court’s judgment had a basis in national law, namely the common law as set out by the House of Lords in Reynolds. However, it maintained that the relevant national law failed to satisfy the foreseeability requirement because the test for qualified privilege, set out in Reynolds is too vague and unpredictable. It pointed, in particular, to the conflation of the public’s right to know with the conduct of the publisher, which it claimed led to legal uncertainty.

(b) The Court’s assessment – general principles

The Court recalls (Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996‑II, at § 3) that:

“The Court reiterates that, according to its case-law, the relevant national law must be formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, for instance, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, para. 37).”

(c) The Court’s assessment – application to this case

The Court observes, in the first place, that qualified privilege is an exceptional defence intended to ensure that when the “common convenience and welfare of society” so demands, people should be able to communicate freely (even if that involves making defamatory statements of fact which cannot be proved to be true) without fear of litigation (Reynolds, at 193H). It exempts newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals so long as they have, taking into account all the relevant circumstances, acted in accordance with the standards of “responsible journalism” (Reynolds, at 202E).

Secondly, the Court recalls that when it has been called upon to decide whether to exempt newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals, it has exercised a discretion after taking into account various factors, particularly the nature and degree of the defamation and the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations (Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999‑III and McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002‑III). These factors, in turn, require consideration of other factors such as the authority of the source (Bladet Tromsø and Stensaas v. Norway [GC], cited above), whether the newspaper had conducted a reasonable amount of research before publication (Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, § 37), whether the newspaper presented the story in a reasonably balanced manner (Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000‑IV) and whether the newspaper gave the person defamed the opportunity to defend themselves (Bergens Tidende and Others v. Norway, cited above, § 58).

Hence, the nature of the defence of qualified privilege is such that, in order to apply it in a manner consistent with the case-law of this Court, domestic courts have to exercise a discretion after taking into account numerous factors.

Thirdly, the Court considers that, by identifying the most important of these factors, the House of Lords in Reynolds helped to limit the scope of that discretion. The applicant maintains, however, that the particular factors identified by the House of Lords in Reynolds (in particular the first and third factors concerning “the seriousness of the allegation” and “the source of the allegation”) create legal uncertainty by conflating the public’s right to know with the conduct of the defendant media. However, according to the case law of this Court, these same factors are relied upon in determining whether a newspaper should be exempted from its ordinary obligation to verify factual statements that are defamatory of private individuals (Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 66 and McVicar v. the United Kingdom, cited above, § 84). The Court does not accept that these factors create legal uncertainty.

Fourthly, the Court observes that there is a reasonable amount of case-law on the application of the Reynolds test (set out in Relevant Domestic law and Practice above). These cases demonstrate certain principles, such as how important it is for the defence of qualified privilege that the source of the information be reliable (GKR Karate v Yorkshire Post, cited above), that the person defamed be given the opportunity to defend himself (Gilbert v MGN, cited above) and that the story be balanced (Al Fagih v HH Saudi Research & Marketing UK Ltd, cited above).

Lastly, the Court considers that, on the facts of this particular case, it would be reasonable to find that the applicant should have realised that by publishing defamatory statements of fact, based on sources that were either unreliable or cryptic without contacting the person being defamed or attempting to put their side of the story, might well be considered to have failed to live up to the standard of “responsible journalism”, as described in Reynolds and that, as a result, they would not be able to benefit from the defence of qualified privilege.

For all these reasons, Court does not consider that the interpretation of the relevant law made by the High Court in the applicant’s case could be said to have gone beyond what could be reasonably foreseen in the circumstances (see, mutatis mutandis, S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, § 36). Nor does it find any other indication that the law in question did not afford the applicant adequate protection against arbitrary interference.

2. Did the interference pursue a legitimate aim?

The applicant did not dispute that the interference pursued the legitimate aim of protecting the rights and reputations of others and the Court finds no reason to differ from that view.

3. Was the interference necessary to achieve that aim?

(a) The applicant’s submissions

The applicant complained that that the interference was not proportionate because, by refusing to consider information obtained after publication, the High Court failed to take sufficient account of the public’s right to know.

(b) The Court’s assessment – general principles

As the Court said in the above-cited McVicar v. the United Kingdom, no. 46311/99, § 72-73, ECHR 2002‑III:

“The Court recalls that, as a general principle, whilst the mass media must not overstep the bounds imposed in the interests of the protection of the reputation of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III).

However, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article, the exercise of this freedom carries with it “duties and responsibilities” which are liable to assume significance when, as in the present case, there is a question of attacking the reputation of private individuals and undermining the “rights of others”. By reason of these “duties and responsibilities”, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas, cited above, § 65).”

(c) The Court’s assessment – application to this case

The Court notes that the expressions in question consisted of factual statements, not value-judgments (Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 28, § 46) and that, in its defence, the applicant did not seek to justify those factual statements. Hence, it must be examined whether there existed any special grounds for releasing the applicant from its ordinary obligation to verify factual statements that were defamatory of private individuals (Bladet Tromsø and Stensaas v. Norway, cited above, § 66 and McVicar v. the United Kingdom, § 84). As outlined above, the question of whether such grounds existed depends, in particular, on the nature and degree of the defamation in question and the extent to which the newspaper could reasonably regard its sources as reliable with respect to the allegations (ibidem).

This issue must be determined in the light of the situation as it presented itself to the applicant at the material time rather than with the benefit of hindsight, or on the basis of information obtained after publication (Bladet Tromsø and Stensaas v. Norway, cited above, § 66). As a result, the information obtained after publication had no relevance to the issue in the case. The decision of the High Court to exclude such information does not give rise to any appearance of a violation of Article 10 of the Convention.

Moreover, the Court cannot accept that the decision of the High Court (of 26 November 2002) to strike out its defence of a qualified privilege amounted to a disproportionate interference with its Article 10 rights. The defamation was undeniably serious – Mr Loutchansky was being accused, at least indirectly, of being involved in major international crime. The story was not particularly urgent and Mr Loutchansky had not even been contacted or given the opportunity to defend himself prior to publication. According to the domestic courts, with which this Court sees no reason to differ on the point, the applicant’s sources for the allegations made were either unreliable or cryptic.

In the light of the above, the Court considers that the interest of Mr Loutchansky in protecting his reputation was not counter-balanced by any important public interest in the freedom of the press to impart information of legitimate public concern. The Court is satisfied that, in finding that the interest in protecting the plaintiff’s reputation outweighed the applicant’s freedom of expression, the High Court’s decision was based on reasons which could reasonably be regarded as relevant and sufficient. It concludes that the interference with the applicants’ freedom of expression was not disproportionate to the aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2 of the Convention.

It follows that the complaint in relation to qualified privilege must be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The complaint in relation to the internet publication rule

The applicant also complains that rule of domestic law which allows for a new cause of action to accrue every time a defamatory article is accessed on the internet breached its rights under Article 10 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2(b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Joins applications 23676/03 and 3002/03

Decides to adjourn the applicant’s complaint concerning the accrual of causes of action as regards internet publications.

Declares the remainder of the complaints inadmissible.

Michael O’BoyleJosep Casadevall
RegistrarActing President

[1] Registrar’s note – the applicant used the spelling ‘Lutchansky’ in the original two articles.  However, the spelling ‘Loutchansky’ was adopted by all the parties to the subsequent proceedings.

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