12 Nov 2012 | 10:16
The past week has seen a series of extraordinary events arising out of a BBC Newsnight broadcast about sexual abuse in children's homes in North Wales in the 1970s and 1980s. This led to the wide dissemination of false allegations against the former Conservative Party Treasurer, Lord McAlpine and resulted in the resignation of the Director General of the BBC. The case gives rise to a number of interesting libel law questions and casts doubt on the appropriateness of a proposed new 'public interest defence'.
Let's begin with the recent history. On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children's homes in North Wales. One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse. He said that his abusers included "a leading Tory politician of the Thatcher era".
The fact that the programme was going to make these allegations was widely reported before transmission and the "leading Tory politician" was identified on Twitter before broadcast as Lord McAlpine. His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.
On 8 November 2012, The Guardian reported that "Mistaken Identity" had led to the abuse claims against the "Top Tory", and named Lord McAlpine as the Tory in question. Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity. The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.
Did the broadcast libel Lord McAlpine?
The first question to ask is whether it could be said that the broadcast libelled Lord McAlpine. The tort of libel is committed where a defendant publishes defamatory allegations about the claimant. It is clear that the claimant does not have to be mentioned by name:
"Where he is not named the test of this is whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to" (Knupffer v London Express Newspaper Limited  AC 116, 119).
Although the "leading Tory politician of the Thatcher era" was not named on the broadcast, many viewers could and would have identified Lord McAlpine because of the tweets which were circulating in advance of transmission which said that he was the politician in question.
A number of commentators have pointed out that the case has parallels with a 2006 claim brought by the footballer Ashley Cole over reports in The Sun and the News of the World that two (unnamed) Premiership players indulged in a "gay sex orgy". The defendants apologised and paid substantial damages.
The fact that many or even most viewers of the programme would not have identified Lord McAlpine would only be relevant to damages and would not provide a defence.
A Reynolds defence?
The BBC have accepted that the allegation against Lord McAlpine was false. The only potential defence available to them would appear to be the Reynolds or responsible publication defence.
The subject matter was plainly of public interest. The question would then arise as to whether the BBC acted responsibly in publishing the allegations that they did. The obligations which the BBC itself undertakes in relation to accuracy are set out in its Editorial Guidelines. These begin by stating that:
"Where appropriate to the output, we should:
• gather material using first hand sources wherever possible
• check and cross check facts
• validate the authenticity of documentary evidence and digital material
• corroborate claims and allegations made by contributors wherever possible."
There appear to be serious question marks over the 'cross checking' of the facts and "'corroboration' carried out by the BBC - or, in Reynolds terms, the steps taken to verify (Lord Nicholls' point (4) on his "non-exhaustive" list of circumstances relevant to the existence of the Reynolds defence ( 2 AC 127, 205).
There were doubts about Mr Messham's evidence in general and it appears that he was not shown a photograph of Lord McAlpine to check that this was, indeed, the person he was talking about.
Then there is the opportunity which should be afforded to a person accused to put their side of the story. The BBC Editorial Guidelines make it clear that:
"When our output makes allegations of wrongdoing, iniquity or incompetence or lays out a strong and damaging critique of an individual or institution the presumption is that those criticised should be given a "right of reply", that is, given a fair opportunity to respond to the allegations".
In other words, the allegations should have been put to Lord McAlpine - as also suggested by points 7 and 8 in Lord Nicholls' "non-exhaustive" list ( 2 AC 127, 205).
It is not clear whether the BBC did put the allegations to Lord McAlpine (no such approach is mentioned in his statement). If they did not, there would be a strong argument that they had not acted responsibly.
Overall, it would seem that the BBC would face considerable difficulty in establishing a Reynolds defence in this case.
Claims against tweeters
Libel claims by Lord McAlpine against those who identified him on Twitter as being the "leading Tory politician" implicated in the North Wales abuse scandal are much more straightforward. Although these tweets used different words, many directly identified Lord McAlpine as the unidentified Tory mentioned by Newsnight - or as the 'Tory paedophile'. Even if they simply stated "The BBC says Lord McAlpine was involved in child abuse" this would provide no defence as it would fall foul of the so-called 'repetition rule': that "It is no defence to an action for defamation for the defendant to prove that he was merely repeating what he has been told" (see Stern v Piper  QB 123).
The tweeters who identified Lord McAlpine include a number of well-known figures - several who have apologised. Although this will mitigate their damages it does not provide them with a defence. Those who tweeted Lord McAlpine's name would have no potential Reynolds defence unless they had personally taken steps to verify the allegation. This seems highly unlikely to say the least. As a result, Lord McAlpine is likely to have tens if not hundreds or thousands of potential claims for libel.
Responsible publication: the proposed new public interest defence
An interesting final point concerns the defence of responsible publication which some campaigners have proposed to replace the current clause 4 of the Defamation Bill. The current version of the bill contains a defence of "Responsible Publication in the Public Interest" - which is a codification of Reynolds. However, as Alastair Mullis and Andrew Scott pointed out on Inforrm last week, a more radical proposal was advanced by Lord Lester in the recent House of Lords debate.
Lord Lester formulated the new defence in this way:
"First, it might say that it is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest. Secondly, in the case of publication for the purposes of journalism, the court shall, in determining whether the requirements of (a) and (b) are satisfied, give a wide discretion to the editor or other person responsible for the publication as to the content of the statement, the form in which the statement was made and the timing of the publication ... Thirdly, for the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Fourthly, a defence under this section shall not succeed ... if the claimant shows that he asked the defendant for the publication of a correction of the statement complained of and that the request was unreasonably refused or granted subject to unreasonable conditions"
If this defence had been in force at the time of the Newsnight broadcast (or indeed, the publication of the offending tweets) then it would, arguably, have provided a complete answer to any claim by Lord McAlpine. The broadcast plainly contributed to a debate of public interest and it seems plain that the broadcasters believed that the publication of the interview with Mr Messham was in the public interest. The broadcasters would, presumably, argue that this belief was reasonable because it was based on an interview with a victim who had consistently made the allegation - and there was apparently, a second victim who had made a similar allegation.
The tweeters would say that their tweets contribute to a public interest debate and that they reasonably believed that it was in the public interest to publish because the identification of Lord McAlpine had been the result of a BBC investigation.
The fact that Lord McAlpine could ask for the publication of a correction would provide him with little solace for the publication of such a serious defamatory allegation, founded on very thin evidence.
There is a strong argument that a defence which would permit the publication of very serious but wholly unfounded allegations without legal liability is not fit for purpose and fails to strike a proper balance between reputation and expression.
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