The value of pre-publication procedure

In order to thwart threatened (or successfully defend actual) defamation claims, publishing lawyers regularly advise journalist/publisher clients on the proper fulfilment of their journalistic obligations. For instance, to aid journalists’/publishers’ ability to rely on the ‘public interest’ defence, it is best practice for them to produce Public Interest memos as a contemporaneous record of reasonable belief at the time that publication was in the public interest.

The importance of doing so was famously entrenched in media practice by the 2021 ruling in Lachaux v Independent Print Ltd. In a memorable response to witness testimony that the Defendants’ editors did not have ‘a formal policy as to how [reasonable belief] would be demonstrated,’ Mr Justice Nicklin announced that this ‘demonstrated a lax and, frankly, amateurish approach to the recording of decisions of potentially critical importance.’ He continued:

In other areas, where professionals are asked to account for events that have happened and decisions they have taken, the Courts are used to seeing contemporaneous records. For example, doctors, nurses, teachers, police officers, lawyers, surveyors, dentists, accountants, opticians, and architects routinely take notes and keep records of their professional lives; information received, advice given, decisions made, and actions taken. Partly, this record keeping assists them to do their respective jobs, but one of the reasons that these records are kept is because the professional may be called upon to account for his/her decisions or actions – to superiors, a regulator or even in litigation – and the recognition that memory alone may be an unreliable tool upon which to rely.

The value of keeping contemporaneous records has most recently been reinforced this June by Mr Justice Nicklin’s judgment on the preliminary issues in Harcombe and Kendrick v Associated Newspapers. In this judgment, Mr Justice Nicklin explained that in assessing whether there was a reasonable belief that publication was in the public interest, the focus must be ‘on the things the defendant said or knew or did, or failed to do, up to the time of publication.’ In this regard, he noted ‘a complete absence of’ any contemporaneous record of the nature set out above and ‘no reliable record’ of the underpinning factual information on which the allegedly defamatory statements were made.

Not only did the newspaper and its journalist fail to demonstrate their rationale, but ‘perhaps the most serious omission [by the journalist]’ in the Judge’s opinion (and ultimate defect of the public interest defence) was ‘his treatment of the Claimants’ right-to-reply responses’.

Although the Supreme Court judgment in Serafin v Malkiewicz deemed it ‘too strong to describe the… invitation to comment as a “requirement,”’ it also acknowledged that an invitation (or lack thereof) will always be ‘at least the subject of consideration.’ In the interest of both fairness and accurate journalism, the BBC’s Editorial Guidelines recommend that journalists extend a right to reply to their subjects where content intended for publication makes ‘allegations of wrongdoing’ and/or serious criticisms of identifiable institutions or individuals. Its Guidance states that ‘respondents should be given enough information and detail about the arguments and allegations to understand them and give an informed response.’

However, in Harcombe and Kendrick, Mr Justice Nicklin considered that the right-to-reply emails the journalist sent to the Claimants before publication ‘failed to disclose the full nature and extent of the attack on the Claimants that was about to be published in the Articles’ and that this ‘had a direct impact on what the Claimants said in their responses.’ The Judge further considered that the emails in question contained omissions that ‘deprived the Claimants of a real understanding of the enormity of what was about to be published about them.’

Once the Claimants responded, it was held that the journalist ‘did not consider the Claimants’ responses, or engage with them, in any depth or detail. He dismissed them… and the Articles failed fairly to present fully what the Claimants had said in their own defence.’ This led to the publication of articles which were imbalanced, factually inaccurate and therefore whose publication could not reasonably be believed to have been in the public interest:

Where, as here, the publication includes serious criticisms against identified individuals in relation to the accuracy, honesty and cogency of what they have published, in the context of a continuing debate in the scientific community, the requirements of a public interest defence are likely to be met only if the commentator honestly and fairly represents the debate and the contribution made by those criticised.

While the Court considered that both newspaper and journalist successfully demonstrated (1) that the articles in question were published on a matter of public interest and (2) that the journalist believed that publishing the articles was in the public interest, they failed to establish that their belief was reasonable. Accordingly, Mr Justice Nicklin ruled that Associated Newspapers’ public interest defence had failed.

This judgment is a helpful reminder to would-be defendants of the importance of engaging thoroughly with pre-publication procedure as a means of reducing risk. For advice on or help with legally fortifying your content, please contact our team of specialists.