The question of the scope of the discovery that a publisher should have to make in a defamation action is often contentious, particularly where a plea of truth has been put forward. To what extent is the pre-publication conduct of the publisher relevant where truth is pleaded and, if relevant, will discovery be granted if the publisher intends to assert journalistic privilege over the documents?
In Crawley v Sunday Newspapers Ltd, the plaintiff submitted that in light of the newspaper’s truth defence, the defendant should have to produce by way of discovery the background material on which it relied in preparing the articles, including details of any investigation that it carried out into the plaintiff. The newspaper argued that its conduct prior to publication was not relevant because it was relying on truth and said that it would, in any event, be relying on journalistic privilege in respect of the documentation which it argued militated against granting the discovery sought. The court granted a more defined form of discovery, while acknowledging the practical issues arising from listing the documentation.
The plaintiff’s claim arose from the publication of several articles in the Sunday World newspaper in April 2014, which alleged criminality and involvement in the illegal trafficking of women. The plaintiff also claims that the defendant was negligent in failing to ensure that the information it published about him was properly checked and verified. In its defence, the defendant denies meaning, relies on truth, honest opinion and denies negligence, as well as relying on the defence of fair and reasonable publication on a matter of public interest.
The plaintiff sought discovery of documents relating to the preparation of the articles, including any interviews, transcripts, particulars of relevant telephone numbers, photographs and letters. The defendant opposed the application, arguing that the categories sought were over-burdensome given the description of the documents sought and the lack of any temporal limitation. The defendant also submitted that the truth defence did not require a consideration of the investigation that it carried out. The defendant also sought to avoid the discovery categories on the basis that documents relating to its investigation would be covered by journalistic privilege and the orders sought by the plaintiff would endanger the functioning of the press by dissuading sources from speaking with newspapers.
The Court took the view that discovery sought was both relevant and necessary but agreed that the categories were overbroad. The court rejected the defendant’s argument that a truth plea does not require the court to interrogate the process carried out by a newspaper or journalist prior to publication. Ruling that it would be necessary for the court to make decisions on the evidence in support of the truth pleas, Ms Justice Hyland was satisfied that the material sought by the plaintiff was relevant and ordered discovery of an amended category of documents.
Applying Keating v RTE and Ryanair v Channel 4, the court was satisfied that the fact that privilege would be claimed was not a basis for declining to make an order for discovery of relevant and necessary documents. The appropriate time for invoking privilege, including journalistic privilege, is in the affidavit as to documents.
The court confirmed, however, that per Ryanair v Channel 4 the courts allow some leeway as regards the description of any documents over which privilege is asserted, which must be listed individually in the schedules to the affidavit of discovery. Ms Justice Hyland acknowledged that there may be a particular difficulty when it comes to describing documentation over which journalistic privilege is being claimed, “since identifying the sender and recipient of the document, or indeed the document itself, might identify the source. Therefore, a more general description…is acceptable.”
Source protection is a key priority and challenge for media organisations. The Irish requirements that discovery is made on oath and that privileged documents must be listed individually and described so that they can be identified in the event of a challenge to the privilege claim often present significant issues for publishers. Considerable care must be taken to avoid jigsaw identification of sources and privileged information and this decision provides helpful confirmation that the courts recognise these practical difficulties and allow some leeway in this regard, although it is also important to note that not all documents generated in the investigation of a story benefit from journalistic privilege and each document has to be considered individually when making discovery.