Does English libel law provide proper protection for the media? Yesterday's libel victory for George Galloway has again brought this question into sharp focus. The defeated Daily Telegraph described Mr Justice Eady's judgment in favour of the former Labour MP as "a blow to the principle of freedom of expression in this country" and "a bad day for investigative journalism". In contrast, Mr Galloway said that the courtroom was "one corner of this English field which remains uncorrupt and independent".
In order to work out whether the judgment is a body blow to English journalism or a proper vindication of a wronged man, we need to go back five years to the decision of the House of Lords in the case brought by Irish politician Albert Reynolds against the Sunday Times. The allegations involved misleading the Dáil and cabinet colleagues. The paper did not try to prove this was true, but argued that it should be protected by "qualified privilege", that it should be immune from a libel action in the public interest.
In Reynolds, the Sunday Times argued for a US-style "immunity" for the publication of "political information". The House of Lords rejected this argument, but recognised a new form of qualified privilege, which arose when the media acted responsibly in publishing material about matters of public concern. The court must consider, in each case, whether there was a "duty to publish". If there was such a duty then the media would have a complete defence. Lord Nicholls set out 10 points the courts could take into account. These included matters such as the source of the information, the urgency of the matter, and whether or not comment was sought from the claimant.
The Reynolds decision was seen as a new departure in English libel law. Journalists who acted "responsibly" when publishing material of public concern could avoid the onerous requirement of proving that what they said was true. It seemed that freedom of expression could be significantly strengthened and protected. The subsequent history has not been encouraging. The Reynolds defence has failed in a series of high-profile cases. The award of £150,000 damages to Mr Galloway is only the latest example.
But why did the Telegraph lose? There are a number of important features of the case. First, it was not a case of "investigative journalism" at all. The Telegraph was reporting (and interpreting) documents which had been found in the Iraqi foreign ministry. It made no investigation into the truth or authenticity of these documents. Secondly, the story was rushed into print. The documents were found on April 20 2003, and the story was published on April 22. Third, there was the tone of the coverage. The judge described it as "dramatic and condemnatory". Fourth, in a series of articles published over a period of two days, the Telegraph made very serious charges against Mr Galloway. It was not simply a case of reportage, of repeating what someone else had said. The judge accepted that the effect of the articles was to claim that there was overwhelming evidence that Mr Galloway was guilty of personal greed and hypocrisy. In an editorial headed "Saddam's Little Helper", the Telegraph said: "There is a word for taking money from enemy regimes: treason."
Bearing these points in mind, it is perhaps not surprising that the judge concluded that the Telegraph did not have a duty to publish. He summed it up in this way: "Did the Daily Telegraph have a duty to publish material to the effect that Mr Galloway was an 'MP in Saddam's pay' at all? Did they have a duty to do so without putting that allegation to him? To my mind the answer must clearly be in the negative."
Where does all this leave the media? The Galloway case reinforces the obvious point: the mere fact, if true, that a story is in the public interest does not justify publication. There are certain elementary steps which "responsible journalists" must take: they must check the facts, they must speak to those involved and, if the position is unclear, they must say so. The judge found that the Telegraph had done none of these things. What was at fault was not the Reynolds defence, but the Telegraph's journalism.
Nevertheless, five years on, Reynolds has not been a complete success. Despite the new emphasis on freedom of expression and Article 10, the basic elements of the English law of libel remain in place. Defamatory allegations are "presumed" to be false; damage to reputation does not have to be proved. One objection to Reynolds is that it focuses attention in the wrong place. A responsible journalism defence means that cases are concerned with minute examination of the inner workings of the journalistic process. The truth or falsity of the allegations is not investigated.
What most claimants want is vindication - the acceptance by the media that published allegations are not true. Mr Galloway wanted the Telegraph to acknowledge that he was not "in Saddam's pay". The only way he could do this was by obtaining a verdict for substantial damages. But his purpose would have been achieved if the courts were to recognise a remedy common in the rest of Europe: the declaration of falsity. If a claimant could bring an action, not for damages, but simply to establish that what was written was false, then he would achieve his aim of vindication. At the same time, the media would not be threatened with large awards of damages, and costs would not be eaten up investigating which journalist did what, when.
The Galloway case leaves the responsible journalism defence intact. But perhaps its true lesson is not that freedom of expression is under threat, but that libel law is not yet protecting it in the right way. New remedies should be devised to provide a proper balance between media expression and the right of everyone to a reputation based on the truth.
· Hugh Tomlinson QC is a barrister at Matrix Chambers