Technology &
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Defence of Justification in Libel & Defamation Law - Verification of the Truth

The Court of Appeal, in a majority judgment (Mantell LJ dissenting) held in Al-Fagih v H H Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ B16 (5 November 2001) that newspaper reports which are prima facie defamatory do not automatically lose the benefit of the defence of qualified privilege merely because the newspaper did not verify the truth of the allegations, provided the report was entirely objective. 

The Background

In this case, the words complained of comprised an allegation made by the defendant about the claimant in the course of a dispute between the two men, both prominent members of a Saudi Arabian dissident political organisation known as the Committee for Defence of Legitimate Rights (the Committee) which is opposed to the existing Saudi Arabian government and seeks by non-violent means to bring about human rights reforms. The defendant's newspaper supports the Saudi Arabian government and is in part owned by the Saudi Arabian royal family. It sells about 1500 copies a day in London mainly to persons from the Saudi Arabian community with a particular interest in Saudi Arabian affairs and personalities. The newspaper reported the unfolding dispute over a period of some two weeks.

Public Interest

The Court of Appeal adopted the test propounded by the House of Lords in the landmark case of Reynolds v Times Newspapers Limited [2001] 2 AC 127 by asking the question: 'what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public.' It concluded that the publication had occurred in the course of what was undoubtedly a political dispute between the claimant and his political opponent which was being conducted in the public arena. In those circumstances it was in the public interest for defendant's readership to know exactly what type of allegations were being made from time to time by one side of the dispute against the other.

Latham LJ stated that the paper was reporting a split in a political group which was clearly of significant interest to its readers. In this context, what is said by the one side in relation to the other is itself of considerable interest. This is so whether what is said is of high political importance, or merely scurrilous gossip or personal accusations. The fact that allegations of the latter sort are made rather than the former enables the interested reader to obtain some insight into the nature of the dispute. It is the fact that the allegation of a particular nature has been made which is in this context important, and not necessarily its truth or falsity.

Qualified Privilege: Verification of Truth

In the High Court, Smith J - even if she conceded that there was some public interest in the matter (albeit not a lot) - held that because the defendant newspaper had made no attempt to verify the truth of the allegation as it could and should have done, the newspaper had taken sides and had implied that the allegation was true. Thus, even though there was some public interest in the reporting of the dispute, the potential harm to the claimant from the publication of the unverified allegation outweighed the public interest in publication. Accordingly, she held that the newspaper could not avail itself of the defence of qualified privilege.

However, Simon Brown LJ in the Court of Appeal took the view that - given that the news of the dispute was a matter of real interest and concern to the readership and newspaper did not adopt the allegation or in any way imply that it was true - even without an attempt to verify the allegation, the publication could be regarded as being in the public interest and, therefore, attracted the defence of qualified privilege. He observed that:

'In this situation it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit [itself] to one side or the other.'

Latham LJ said that the question whether verification is necessary in any given case in order to obtain the protection of qualified privilege would clearly depend upon the facts. But if, as here, the publication is of an allegation made in the context of allegation, counter-allegation and refutation, where attribution is clear, and where the paper has said nothing to suggest that it in any way adopts an allegation, verification is only likely to be of significance where the allegation is, for example, of criminality the ramifications of which may go well beyond the ambit of the dispute which is the subject matter of the public, the judge was wrong to conclude that in the present case the absence of verification was of such significance as to deprive the paper of the protection of qualified privilege. It could only have verified by asking for some tapes; the outcome of such a request was entirely unknown. It would have delayed publication in circumstances where it could, reasonably, be said that the interested readers were entitled to know the latest development in the dispute.cation. Accordingly, he concluded that

Malice and Recklessness

Moreover, (as opposed to Smith J in the High Court), Simon Brown LJ took the view that it was wrong to conclude that recklessness and therefore malice is established merely by a newspaper's failure to verify.

Conclusion

The significance of this case is that a claim for the protection of qualified privilege in an action for libel is not automatically defeated merely because the publisher of the libellous statement did not verify the truth or falsity of the allegations made. Be that as it may, it does not follow that verification (or at least an attempt at verification) of a third party's allegations will not ordinarily be appropriate and perhaps even essential.

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