Full case report
Roberts & Another v Gable & others (CA)
Reference  EWCA Civ 721;  2 WLR 129;  EMLR 457
Court Court of Appeal
Judge Ward, Sedley, Moore-Bick LLJ
Date of Judgment 12 Jul 2007
Defamation – Libel – Qualified privilege – Reynolds privilege – Dispute between members of political party – Allegations of commission of criminal offences – Reportage
The Cs were active members of the British National Party (“BNP”). Both stood as candidates in the 2005 general election. They complained of an article in Searchlight magazine’s October 2003 edition, written by Mr Gable and published and edited by the other Ds. It was headed “BNP London row rumbles on” and appeared to be part of a series of articles intermittently covering what was described as a “feud” between different factions of the BNP in the London area.
Cs complained that the article meant that C1 had (i) stolen money collected at a BNP rally, and (ii) not returned it until threatened with being reported to the police; and that both Cs (iii) had threatened to kneecap, torture and kill 2 other BNP members and their families and (iv) might be subject to police investigation.
The Ds pleaded justification and alternatively the reportage variety of Reynolds privilege.
Eady J upheld the defence. The Cs appealed.
Whether the decision of Eady J that the article was protected by Reynolds privilege under the doctrine of reportage, as explained by the Court of Appeal in Al-Fagih v HH Saudi Research and Marketing (UK) Ltd, was correct.
Dismissing the appeal; the judgment below correctly applied the principles of reportage and in all the circumstances the article was a piece of responsible journalism. The article was in the public interest and the Ds did not adopt the allegation of wrongdoing in it.
Ward LJ analyses the case law on neutral reportage before setting out a nine-point approach to assessing a reportage defence (§61). Sedley LJ stressed that since the reportage defence modifies the repetition rule in the interests of Reynolds privilege it needs to be treated restrictively. However, the case law shows that reportage cases have succeeded where others have not fared so well. It remains to be seen whether Jameel will change that position. As to the difference between the approach of the ECHR and US Courts, Sedley LJ eloquently observed (§75): “Where rights to reputation and privacy have wilted somewhat in the bright light of First Amendment jurisprudence, the English common law, now reinforced by the European Convention on Human Rights, seeks to hold the two in a sometimes difficult balance, calibrated by the concept of responsible journalism.”
Osmond & Osmond for the Appellants; Kosky Seal for the Respondents
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.