Roberts & Anor v Gable & Ors

The libel law landscape has been liberalised by Reynolds. Although it is tempting for the purpose of this judgment to follow Simon Brown L.J.'s approach in Al-Fagih and say that one can "take as read the bulk of what was said in each of the five speeches in Reynolds", I do need to set the scene in a little more detail in order to do justice to the powerful arguments addressed to us in a field in which a "corpus of case law" is still being built up, in the development of which we are invited to participate. Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UK HL 44, [2006] 3 WLR 642, [2007] A.C. 359, is the most recent valuable elucidation of the proper approach. Without citing great swathes of the opinions expressed in those cases and at the risk of oversimplification, the relevant principles which inform the case before us can perhaps be stated as follows.

The pleaded defence is that the article did not allege that either of the claimants was guilty of criminal conduct. It described the allegations being made by both groups of supporters against each other to illustrate the enmity between rival groups struggling for political leadership of the British National Party. It is a defence of what is now becoming known as reportage. This appeal has given this Court the opportunity to explore the nature and extent of that defence and its place in the libel law landscape.

Reportage is a fancy word. The Concise Oxford Dictionary defines it as "the describing of events, esp. the reporting of news etc. for the press and for broadcasting." It seems we have Mr Andrew Caldecott Q.C. to thank – or to blame – for its introduction into our jurisdiction. The doctrine first saw the light of day in Al Fagih. Simon Brown L.J. said in paragraph 6 that it was "a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper." That may indeed conveniently describe what it is but there is more to it than that and it is necessary to see how this new doctrine fits into the firmament.

Since Mr Tomlinson seeks to distinguish his case from Al Fagih, it is necessary to examine it closely. The claimant (AF) and a Dr Al Mas'aari (AM) were prominent members of a dissident political organisation (the Committee) opposed to the existing Saudi Arabian government. The defendant newspaper supported the government and was sponsored by the Saudi royal family. The Committee was riven by a dispute between AF, the manager of its London office, and AM its spokesman. This dispute escalated to the point that both men were issuing press releases reporting their side of the problem and these were avidly reported by the defendant on a day to day basis as the saga unfolded. On 5th March 1996 AM issued his press release announcing the expulsion of AF and setting out a number of allegations against him one of which was of his spreading malicious rumours to defame the honour of his fellow members of the Committee and the women of certain provinces in Saudi Arabia. This was reported the following day, 6th March, by the defendant though the scandal-mongering allegation was slightly toned down. AF's riposte the same day was to issue his press release announcing AM's removal as the Committee's official spokesman. The defendant's journalist spoke to AM for his reaction. In the course of this conversation AM gave as an example of the rumours that were being spread by AF that AF had accused his mother of bringing women to him at home. AM said he would be able to produce tape recordings to confirm what was being said. That was reported in the defendant newspaper on 7th March. AF read it with shock and disbelief because in Muslim society an allegation that a person had made imputations of a sexual nature such as he was alleged to have made was regarded with greater censure than the person of whom the imputations were made. Later that day the journalist telephoned AF to seek his comments on the article, the truth of which AM denied. On 8th March the newspaper published another long article about the split within the Committee and included AF's response to the article.

The trial judge, Janet Smith J. rejected the defence of qualified privilege but one of the arguments before her was abandoned by Mr Caldecott, part of the defendant's new team to represent it on the appeal. It is important to note that Mr Caldecott accepted that he had to bring the defence of qualified privilege within the ambit of Reynolds as those principles had to apply in every case, irrespective of whether or not it was within the field of political discussion, whether the defamatory allegation was adopted or unadopted, attributed or unattributed. His submission was that qualified privilege was established because these reports were made within the context of a political dispute, were attributed to a political rival and were not adopted by the newspaper.

Simon Brown L.J. reached these conclusions:

"45.

At the end of the day it is necessary to stand back from much of the detail and ask oneself the root question whether in all the circumstances of the case the duty-interest test (or the right to know test) was satisfied. …

49.

This publication occurred in the course of what was undoubtedly a political dispute. The judge herself rightly "accept[ed] that the news of the split within the Committee was a matter of real interest and concern to the readership. It was important news". She was prepared to accept too "the defendant's claim that it did not adopt the allegation or in any way imply that it was true". To my mind she should not in these circumstances have concluded that, without an attempt to verify the allegation, the publication could not be regarded as being in the public interest. That was the critical finding and I find her reasoning in this regard unconvincing. In the first place it must be recognised that both parties to the dispute had issued press releases and were ready to make allegations against the other. … Secondly, … If, as the judge accepted (and seems to me plain), "the mere fact that such allegations are being made is of public interest and importance", notwithstanding that the reader could not determine whether they were true or false, then I have difficulty with the view that the public interest in being informed of the particular allegation complained of was only "very limited". These, it seems to me, are nice distinctions for which there is really no place in the reporting of an on-going dispute on a day-to-day basis. … What is clear from these mutual allegations, however, is that one or other if not both of these leading Committee members were being shown to be disreputable and that basic fact seems to me something which the appellant's readership were entitled to be kept informed about. In my judgment there was no need for the newspaper, at any rate at this early stage of mutual accusation, to commit itself to preferring and adopting the contentions of one side over the other.

50.

In short, the case for finding qualified privilege here seems to be not merely to have been very much stronger than in Reynolds … but strong enough not to have been held forfeit by the appellant's failure to turn an objective report into a verified and adopted allegation. To my mind AK was entitled in this case to publish without attempting verification. Indeed in the present context verification could even be thought inconsistent with the objective reporting of the dispute. …

51.

I am not, of course, saying that verification (or at least an attempt at verification) of a third party's allegations will not ordinarily be appropriate and perhaps even essential. In rejecting the general claim for qualified privilege for political discussion Lord Nicholls said in Reynolds at 203B:

"One difficulty with this suggestion is that it would seem to leave a newspaper open to publish a serious allegation which it had been wholly unable to verify. Depending on the circumstances, that might be most unsatisfactory."

52.

I am saying, however, that there will be circumstances where, as here, that may not be "most unsatisfactory" – where, in short, both sides to a political dispute are being fully, fairly and disinterestedly reported in their respective allegations and responses. 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 himself to one side or the other."

Mantell L.J. considered he could not interfere with the judge's decision and he would have upheld her.

Latham L.J. concluded that:

"65.

… What emerges clearly from that summary [of the facts] is that the paper was reporting a split in a political group which was clearly of significant interest to its readers. It seems to me that 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 (emphasis added).

…

67.

… It seems to me that in the context of allegation and counter-allegation as was undoubtedly the case here, the interested reader was entitled to know what type of allegations were being made from time to time by one side against the other, for the reason which I have already given. Provided that the paper did not, and there is no suggestion of it having done so, in any way suggest that it was adopting the allegation, the fact that the allegation was made was a matter of proper interest to the reader and the paper had an appropriate duty to publish it. …

68.

It is in this context that the need for verification has to be considered. Whether or not there has been verification is only one of the criteria to which consideration has to be given. Whether verification is necessary in any given case in order to obtain the protection of qualified privilege would clearly depend upon the facts. That is a trite statement. 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 publication."

Although one can distil from the judgments the essential strands of the reasoning, namely that the Reynolds' rules apply but that where there has been full attribution but not adoption of a political dispute (a 'spat' as it has since been described), verification is not essential, nonetheless I see the force of the submissions that the ambit of the reportage defence is still not clearly defined or confined by Al Fagih.

Reportage is next mentioned in Mark v Associated Newspapers Ltd [2002] E.M.L.R. 38. There the Daily Mail repeated assertions in the Mail on Sunday that Miss Mark, the Prime Minister's former nanny, had authorised publication of material from her book which she ought not to have done without the Blairs' consent and, moreover, that she had misrepresented her position when claiming to have been devastated by the publication of extracts from her book in the Mail on Sunday. These were defamatory remarks. The Daily Mail, however, also published her denial that she had authorised publication. The two central questions which arose on the appeal were (1) whether the repetition rule was reconcilable with Strasbourg jurisprudence, and (2) even if it is, does the reporting within the same publication of two conflicting statements, the one defamatory, the other its denial, without the publishers disclosing a particular preference for either, have the consequence that the denial is to be regarded as the antidote to remove the bane of the publication in a way which results in its losing its otherwise defamatory meaning. This Court found there was no inconsistency between the repetition rule and decisions of the European Court of Human Rights and that it was only in cases where the antidote so obviously extinguished the bane that no issue could properly be left to the jury that the judge should rule at an interim stage that the article was not capable of being defamatory. In the course of his judgment Simon Brown L.J. said of Al-Fagih:

"35.

In short, whilst I am certainly prepared to recognise that the approach adopted in Al-Fagih may need to be taken further still - rather than perhaps confined merely to the reporting of statements (attributed and unadopted) by both sides to a political dispute - I reject entirely the argument that the repetition rule as such needs changing. To regard reportage as being incapable of harming a person's reputation would be to introduce into the law a fiction which the repetition rule is designed to avoid."

The doctrine is next mentioned in Galloway v Telegraph Group Ltd [2006] E.M.L.R. 221. The articles concerned asserted that Mr Galloway, a well-known Member of Parliament, was in the pay of Saddam Hussein, secretly receiving sums to the order of £375,000 a year, that he had diverted monies from the Oil for Food Programme thus depriving the Iraqi people whose interests he claimed to represent of food and medicine and that he had probably used the Mariam appeal as a front for personal enrichment. The Daily Telegraph did not seek to justify these defamatory statements as true but, relying upon the fact that they were based on documents found by their reporter in Baghdad claimed that the publication was protected by privilege, inter alia, as reportage. The Court of Appeal held:

"48.

It is not in dispute that the Baghdad documents were of great interest to the public and The Daily Telegraph was naturally very keen to publish them. If the documents had been published without comment or further allegations of fact Mr Galloway could have no complaint since, in so far as they contained statements or allegations of fact it was in the public interest for The Daily Telegraph to publish them, at any rate after giving Mr Galloway a fair opportunity to respond to them. Such publication would be reportage. The balance would come down in favour of freedom of expression, which, subject to Art. 10.2, is protected by Art. 10.1 of the Convention, and the statements would be protected by privilege. …

59.

It appears to us that the newspaper was not merely reporting what the Baghdad documents said but that … it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi oil-for-food programme for personal gain. That was not a mere repeat of the documents, which in our view did not, or did not clearly, make such an allegation. … the thrust of the coverage was that The Daily Telegraph was saying that Mr Galloway took money to line his own pockets. In all the circumstances we answer the question whether the newspaper adopted and embellished the statements in the Baghdad documents in the affirmative. …

68.

… The right to publish must however be balanced against the rights of the individual. The balance is a matter for the judge. It is not for an appellate court. This court will not interfere with the judge's conclusion after weighing all the circumstances in the balance unless he has erred in principle or reached a conclusion which is plainly wrong."

Finally, we find some endorsement of the doctrine in Jameel. Lord Hoffmann said in paragraph 62:

"In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases ("reportage") in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth (emphasis added)."

Baroness Hale commented in paragraph 149:

"Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. … The requirements in "reportage" cases, where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well-advised to make this clear. In any case, the tone in which the information is conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on."

At our request counsel did an electronic search of Commonwealth jurisdictions but nothing of assistance was found. The doctrine is known in the United States of America. The leading case appears to be Edwards v National Audubon Society 556 F. 2d 113 decided in May 1977. The National Audubon Society was an environmentalist group vigorously opposed to the insecticide DDT because, in their view, use of the chemical endangered bird life. Proponents of the pesticide denied the charge and forcefully urged that without DDT, millions of human beings would die of insect-carried diseases and starvation caused by the destruction of crops by insect pests. The Society published an annual Christmas bird count which showed a steady increase in bird sightings despite the growing employment of pesticides in the past 30 years. These statistics were seized upon by the scientists as proof of the fallacy of the Society's claims. In riposte the Society prefaced the next year's bird count with an article explaining that the count was the result not of more birds, but of more "birders" (bird watchers). The article added:

"Any time you hear a 'scientist' say the opposite, you are in the presence of someone who is being paid to lie …"

A journalist on the New York Times realised that the Society's charges were a newsworthy development in the already acrimonious debate and he accordingly telephoned the author of the article to obtain the names of those the Society considered to be "paid liars". The plaintiffs were named. The reporter sought their comment. The New York Times published an account of the article, of the names given at interview and of the response of the accused men.

The United States Court of Appeals for the Second Circuit said this:

"At stake in this case is a fundamental principle. Succinctly stated, when a responsible prominent organisation like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. … What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy comments merely because it has serious doubts regarding their truth. Nor must the press take the cudgels against dubious charges in order to publish them without fear of liability for defamation. … The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

The contours of the press's right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made. … It is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage. In such instances he assumes responsibility for the underlying accusation.

It is clear here, that [the journalist] reported Audubon's charges fairly and accurately. He did not in any away espouse the Society's accusations: indeed, [he] published the maligned scientists' outraged reactions in the same article that contained the Society's attack. The Times article, in short, was the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps. Accordingly, we hold that it was privileged under the First Amendment."

In a leading American text book, Sack On Defamation, vol. 1, 3rd ed., the author identifies four features of the case: (1) that the defendant was a responsible prominent organisation, (2) the plaintiff was a public figure, (3) the Times report was accurate and disinterested and (4) the accusations were themselves newsworthy simply because they were made in the context of a controversy then ranging about a sensitive issue.

The American experience must be treated with some caution. It is quite possible that the First Amendment carries more weight in the New York Court of Appeal than Article 10 does here in striking the balance between freedom of expression and the right to protect reputation. The introductory words of Chief Judge Kauffman are suggestive of that:

"In a society which takes seriously the principle that government rests upon the consent of the governed, freedom of the press must be the most cherished tenet. It is elementary that a democracy cannot long survive unless the people are provided the information needed to form judgements on issues that affect their ability to intelligently govern themselves. … the federal courts have steadfastly sought to afford broad protection to expression by the media, without unduly sacrificing the individual's right to be free of unjust damage to his reputation."

Lord Nicholls was firmly of the view that the test of responsible journalism struck the right balance between the Art. 10 right to freedom of expression and the Art. 8 right to the protection of reputation saying at p.203H:

"The common law approach accords with the present state of human rights jurisprudence."

He repeated in Bonnick v Morris [2003] 1 AC 300 paragraph23:

"Responsible journalism is the point at which a fair balance s held between freedom of expression on matters of public concern and the reputation of individuals."

In paragraph 80 of Galloway, the Master of the Rolls quoting how Strasbourg stresses the importance of the national court striking a fair balance between the protection of freedom of expression enshrined in Art. 10 and the protection of freedom of a person's reputation enshrined in Art 8 as an aspect of private life, said:

"It seems to us that is exactly the balance which Lord Nicholls was articulating in Reynolds: … Moreover, it also seems to us that Lord Nicholls was himself according particular importance to freedom of expression and thus freedom of the press in just the same way as the European Court has done. We see no difference in principle between the approach of the House of Lords in Reynolds and that of the European Court."

In Jameel Lord Hope embraced the European approach when he said in paragraph 109 in the language which resonates from Strasbourg:

"The cardinal principle that must be observed is that any incursion into press freedom that the law lays down should go no further than is necessary to hold the balance between the right to freedom of expression and the need to protect the reputation of the individual. It must not be excessive or disproportionate."

Since then the European Court has given judgment in Verlagsgruppe News GMBH v Austria (Application 76918/01) where the applicant newspaper quoted a letter defamatory of a politician which had earlier been published by another paper in the context, said the Court, "of its reportage about the then pending defamation proceedings against Mr Heller [the author of the letter] which, involving several … politicians on the one hand and a well-known artist criticising them publicly on the other hand, was certainly a subject of public interest." So this is seen by the Court as a case of reportage. The Austrian courts ordered the forfeiture of the publication concerned. The Court found that to be in violation of Art. 10, holding:

"31.

…due to the fact that the publication of Mr Heller's statements contributed to the discussion of a subject of public interest and addressed well-known politicians, particularly strong reasons had to be put forward to explain any punishment of the applicant company for assisting in their dissemination.( see mutatis mutandis Thoma v Luxembourg). …

33.

… It is certainly true that the article at issue reflected a rather critical approach to the defamation proceedings. This cannot, however, justify the conclusion that the article identified and adopted the content of the impugned statements of the quoted passage. In this regard the Court further recalls that a general requirement for journalists to distance themselves from the content of a quotation that might provoke or insult others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v Luxembourg. "

Like this court in Galloway, I am satisfied that we walk in tune and in step with the Convention and the Strasbourg jurisprudence and no radical departure from our approach is necessary.

What can be learnt so far from this review of the authorities is that the journalist has a good defence to a claim for libel if what he publishes, even without an attempt to verify its truth, amounts to reportage, the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other kind of dispute. Mr Tomlinson objects that that this is vague and wide and constitutes an unprincipled extension to freedom of expression. His objections can only be met by placing reportage in its proper place in the legal landscape. To do so one must answer these questions:

The repetition rule is well-established and has an important place in libel law. The rule was succinctly described by Lord Reid in Lewis v Daily Telegraph Ltd [1964] A.C. 234, 236 as:

"Repeating someone else's libellous statement is just as bad as making the statement directly."

Indeed it may be much worse:

"… if the words had not been repeated by the newspaper, the damage done by J. [by slandering the plaintiff] would be as nothing compared to the damage done by this newspaper when it repeated it. It broadcast the statement to the people at large …" Truth (N.Z.) Ltd v Holloway [1960] 1 W.L.R. 997, 1003 PC.

Thus the rule is that if A makes a defamatory statement about B and C repeats it, C cannot succeed in the defence of justification by showing that A made the statement: C must prove the charge against B is true. This is so even if C believes the statement to be true and even when C names A as his source. Lord Devlin put it succinctly in Lewis v Daily Telegraph at p. 284:

"For the purposes of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it."

The obvious question which then arises is this: if ordinarily C has to prove the truth of what A said about B, why should that rule not apply simply because C goes on neutrally to report that A and B are in a political dispute and that in the context of that dispute B was also making defamatory or derogatory remarks about A? Why should C be exculpated when reporting what is said in the context of a dispute but not when reporting the allegation in isolation? It was a question posed by Simon Brown L.J. at paragraph 35 of Al-Fagih when he asked:

"At first blush one might wonder why a correctly attributed and unadopted allegation is defamatory at all; to state that the allegation has been made is, after all, true."

The answer was given by Mr Caldecott Q.C. in paragraph 36:

"What, however, Mr Caldecott stresses is that the repetition rule concerns only the scope of the defence of justification in report cases; it does not limit the scope of qualified privilege at common law. Least of all does it require that an unadopted allegation is to be treated in the same way as an allegation asserted to be true."

This was made more explicit in Mark where Simon Brown L.J. said in paragraph 34:

"The repetition rule concerns the meaning of words - and, of course, justification, the other side of the same coin. It recognises the reality as I have sought to explain it. It does not have the effect of making defamatory a publication which otherwise would not be. But when, of course, it comes to qualified privilege, the precise terms and circumstances in which the defamation comes to be repeated become all-important. The (non-exhaustive) ten factors identified by Lord Nicholls in Reynolds … are then all in play. It is at this point that the journalist can seek to pray in aid "the contribution of the press to discussion of matters of public interest" …"

So the answer to the first question is that the repetition rule and reportage are not in conflict with each other. The former is concerned with justification, the latter with privilege. A true case of reportage may give the journalist a complete defence of qualified privilege. If the journalist does not establish the defence then the repetition rule applies and the journalist has to prove the truth of the defamatory words.

Once reportage is seen as a defence of qualified privilege, its place in the legal landscape is clear. It is, as was conceded in Al-Fagih a form of, or a special example of, Reynolds' qualified privilege, a special kind of responsible journalism but with distinctive features of its own. It cannot be a defence sui generis because Reynolds is clear authority that whilst the categories of privilege are not closed, the underlying rationale justifying the defence is the public policy demand for there to be a duty to impart the information and an interest in receiving it (see p. 194 G). If the case for a generic qualified privilege for political speech had to be rejected, so too the case for a generic qualified privilege for reportage must be dismissed.

Thus it seems to me that the following matters must be taken into account when considering whether there is a defence on the ground of reportage.

The judge correctly held that the report covered a subject of legitimate public interest and there is no challenge to that finding. It is true that the particular aspects of the article which are seized upon by the appellants relate to their alleged criminality and not to their political views, but "no distinction is to be drawn between political discussion and other matters of public concern", to quote from Lord Nicholls speech at p.204F. Moreover, as Lord Hope put it in paragraph 108 in Jameel:

"A piece of information that, taken on its own, would be gratuitous can change its character entirely when its place in the article read as a whole is evaluated. The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public."

This article is set in the context of the "BNP row [that] rumbles on." It describes what the judge, colloquially but accurately enough, in my view, characterised as the "goings-on" in the party with each side accusing the other of misappropriation of the funds raised at the rally. It concerns the appellants in their political life, not their private life. Judged as a whole it is clearly a matter of public interest.

Although he may not have addressed the question as explicitly as I do, the judge found in paragraph 24 that Mr Gable "was merely reporting the conflicting positions rather than taking sides with either" and "what would be of interest to the reader would be the fact that the allegations and cross- allegations of criminal offences were being made by BNP factions against each other, and "not necessarily [their] truth or falsity" (to echo the words of Latham LJ)." He was, therefore, making a finding of what I regard to be essential to establish reportage, namely that the effect of the article was to report the fact that these charges had been made, not that they were true.

The next question is whether or not they were adopted by the respondents. The judge dealt dismissively with the adoption argument in paragraph 34. He simply said that neither the use of "Perhaps" (in the sentence "Perhaps the police are now more interested in Roberts and his brother Barry") nor "explains" (in "It explains that it was Roberts who stole the money …") demonstrated adoption but he gave no reasons for those conclusions.

I have not found the "Perhaps" argument so easy to dismiss. "Perhaps the police are now more interested…" can be read as "Maybe the police should now be more interested" as if Mr Gable, who says he did in fact believe the allegation against the brothers was true, was asserting just that. Upon reflection I am not convinced that is the right way to read the article. "Perhaps" is used sarcastically as a journalistic device to add colour to the article. On this aspect, the learning from Strasbourg is clear. Recently, for example, the Court held in Radio France v France (2005) 40 E.H.R.R.706 in full accord with earlier decisions:

"37.

… Nevertheless, journalistic freedom also allows for the possible use of a certain dose of exaggeration, and even provocation. …

39.

It is not for the court to take the place of the press by saying what reporting technique journalists should adopt; besides the essence of the ideas and information expressed, Art.10 protects their mode of expression."

Jameel is to the same effect, for example as Lord Hoffmann said in paragraph 51:

"… the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting."

I am now satisfied, without lingering doubts which need be resolved in favour of publication, that, taking the article as a whole and making allowance for the sarcastic speculation about possible police interest, the respondents did not adopt the allegation of wrongdoing as their own. This was attributed neutral reporting of a story in the public interest. It was proper reportage as that defence must now be understood (and now that it has a firm place in the libel lexicon, there should no longer be any need to italicise the word). Consequently responsible journalism did not require verification of the truth.

Nonetheless all the circumstances of the case, including Lord Nicholls' 10 factors, must be borne in mind before a final endorsement of the responsibility of the publication can be pronounced and the judge did engage in that overview and in my judgment did not err in his appraisal.

He correctly recognised that the apparent seriousness of the allegation was diluted by the fact that the thrust of the article related to the disagreement as to who should take charge of the collection, not to whether one or other stole it. The public were entitled to know of the fact that the BNP were then riven by this dispute. The source of the information was attributed and truth was not the effect of publication so the reliability of the source was of little significance and verification was not essential. In fairness to Mr Gable I should repeat that he did make some enquiries of other sources to satisfy himself that the dispute was real. The lack of "status" does not destroy the integrity of the report. The story was one which unfolded over the weeks and months and was current, or at least not stale at the time of publication. No comment was sought from the appellants for wholly understandable reasons. In any event the claimants' side of the story was to be inferred: each protagonist was denying impropriety and blaming the other. Apart from a note of sarcasm, and, as all readers would suspect, some unfeigned glee at having this embarrassment to their political enemies presented "on a plate", the tone was as neutral and as disinterested as any article in Searchlight on the BNP could be. There was nothing untoward in the timing of the publication. In all the circumstances, this was a piece of responsible journalism.

I see nothing in paragraph 36 of the judgment which amounts to an error of principle. Reference to "goings-on in political parties, including disputes" does not pitch the case too wide so long as the "goings-on", of whatever kind, are matters which are of enough public concern, as these were, to justify the press bringing them to the attention of their readers. Far from exceeding the permitted bounds of reportage and responsible journalism, this judgment correctly applies the principles as I have expounded and expanded them.

For those reasons, I would dismiss this appeal.