Qualified privilege and newspapers

The decision of the High Court in Loutchansky v Times Newspapers Limited and others (QBD, 27.04.01) has reinforced the importance of the ten principles of good practice set out by Lord Nicholls in Reynolds v Times Newspapers Limited for a qualified privilege defence. In Loutchansky the Times had published two articles about Dr Loutchansky which accused him of being the boss of a major Russian criminal organisation and of being involved in, amongst other things, money-laundering. The judge noted that the Times had "rightly and inevitably conceded" that the articles were defamatory and that all of the defendants "accepted and continue to accept that it is no part of their case that Dr Loutchansky is either rightly or reasonably suspected of criminal activity. The substantive defence on which they rely is qualified privilege."

In Reynolds, Lord Nicholls provided the following non-exhaustive list of factors to be taken into account when considering a qualified privilege defence:

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.

The judge in Loutchansky found that the allegations made in the Times' article were at the "upper end of the scale" of seriousness, and noted that "the Defendants rightly accept that the allegations made against Dr Loutchansky were very serious. It follows, to paraphrase the words of Lord Nicholls in Reynolds at p1027c, that, if these allegations were untrue, the public would have been seriously misinformed and Dr Loutchansky seriously harmed."

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

The judge accepted that the nature of the information in the articles published about Dr Loutchansky would have been of concern to Times readers.

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.

Much of the information in the Times' articles was based in part upon reports which had appeared in the press in the USA. The judge stated that "Reputable though most of the US newspapers in which those reports appeared undoubtedly were, it does not appear to me that as a general rule one newspaper is entitled to treat as being necessary reliable information derived solely from other newspapers, however respectable and reliable the journals in question may be and however often the information has been repeated in the media."

Some information had, however, been obtained from a number of unnamed sources. This evidence was also examined and, apart from the third source, found to be largely unreliable.

4. The steps taken to verify the information.

The judge found a "dearth of evidence as to the steps taken by [the Times] to check the specific items of information most damaging to Dr Loutchansky which found their way into the newspaper" although this was "tempered by a recognition of the difficulty of verifying information provided on a confidential basis by intelligence-related sources."

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

The judge attached considerable importance to this aspect of the case, noting that

"To the extent that there had been investigations of Dr Loutchansky or Nordex [his company] in the 1990s (as there undoubtedly had been) they had resulted in no charges being brought or convictions obtained. If Dr Loutchansky or Nordex was being investigated in connection with the Bank of New York scandal, the investigations were on-going; no conclusions had been arrived at. The stage had not even been reached when consideration had to be given to the question whether there was sufficient evidence to bring charges. The Times itself had not mounted any investigation of the allegations against Dr Loutchansky or sought to assess the strength of the evidence against him.

"In terms of "status" therefore the information that Dr Loutchansky or Nordex was in 1999 being investigated in connection money-laundering was relatively low-grade. The same in my opinion is true of the claims that Nordex had been engaged in smuggling nuclear weapons and that Dr Loutchansky was linked to another mafia boss, namely Mogilevich. Indeed these claims were described in the Times article of 8.9.99 as being no more than "allegations". They were in truth wholly unsubstantiated."

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

The judge said that he was not persuaded that the story about Dr Loutchansky was truly urgent in the sense that its publication might have stopped more harm being done and that it was "far from being so urgent that it needed to be published before diligent efforts had been made to obtain Dr Loutchansky's side of the story."

7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.

The judge noted that it was "common ground that no comment was obtained from Dr Loutchansky or from anyone else in a position to speak on his behalf. As Lord Nicholls pointed out in Reynolds, it is not always necessary to obtain a comment from the person about whom allegations are going to be published. In my opinion this was not such a case: the allegations against Dr Loutchansky were of great gravity. The allegations were unproven. Fairness and good journalistic practice required such a comment, providing that Dr Loutchansky or a spokesman on his behalf could be traced."

8. Whether the article contains the gist of the claimant's side of the story.

The judge noted that "The article of 8.9.99 contained a single paragraph which read: "Mr Loutchansky has repeatedly denied any wrongdoing or links to criminal activity". "Given the seriousness of the (unproven) allegations to be published about Dr Loutchansky, it does not appear to me that the inclusion of a bare denial of that kind was a sufficient statement of Dr Loutchansky's case. There were exculpatory comments which Dr Loutchansky could have made if he had been invited to do so..."

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.

The judge did not criticise the tone of the article.

10. The circumstances of the publication including the timing.

The judge noted that there was no basis for any suggestion that the publication of the article was timed so as to cause particular damage or embarrassment to Dr Loutchansky.

The judge in Loutchansky made the point that all cases involving consideration of the Reynolds criteria will turn on their own facts, which is likely to mean that they have marginal precedent value. However, the Reynolds criteria, in setting out clearly the considerations which a court will take into account in examining qualified privilege defences, are likely to prove very useful indeed, both before and after publication, to those who find themselves the subject of an unfavourable newspaper story.

For further information, please contact Tim Hardy by e-mail at [email protected] or by telephone on +44 (0)20 7367 2533.