On 11 October 2007, the Court of Appeal overturned the decision of the High Court in the case of Michael Charman v Orion Publishing Group Limited, Graeme McLagan [2007] EWCA Civ 972. The Claimant, a former detective constable in the Metropolitan Police force, claimed that he was defamed in a book called “Bent Coppers” written by Mr. Graeme McLagan and published by the co-Defendant. The action is being tried in stages. At the first stage, the High Court had ruled that the book had a defamatory meaning. At the next stage of the trial, the judge rejected the defences of qualified privilege, both common law and statutory. The Defendants were given leave to appeal.

On appeal, the two issues to be resolved were:

  • The extent of the privilege claimed for “reportage” and how this fits into the Reynolds’ type of qualified privilege developed by and after the case of Reynolds v Times Newspapers Ltd [2001] A.C. 127; and
  • The proper approach for the court to take in judging whether the authors and publishers have acted responsibly in communicating the information to the public.

The Appellate Court ruled that the defence of reportage could be established where, judging the thrust of the report as a whole, the effect of the report is not to adopt the truth of what is being reported, but to record the fact that defamatory statements were made. The protection would be lost if, from the point of view of an ordinary reader, the journalist adopts what has been said, makes it his own, or fails to report the story in a fair, disinterested, neutral way that does not meet the standards of responsible journalism as outlined in the Reynolds case. The burden of proof lies with the Defendant. The Court of Appeal concluded that looking at the whole of the book “Bent Coppers,” it was hardly a neutral, disinterested report, even if the excerpts reported were factually true. McLagan was not simply reporting published material, but mixing that material with other information his inquiries had revealed.

On the second issue, the Court held that the defence is available to anyone who publishes material of public interest. The Court went on to rule that, for the defence to succeed, the alleged defamatory material has to be looked at as a whole to determine whether the matter was published in the public interest and whether the standards of responsible journalism had been met. There is no duty to publish and there is no public interest in publishing material that the publisher has not taken reasonable steps to verify as accurate. Once the public interest is proved, the inquiry shifts to the question of whether the Defendant acted fairly and responsibly in gathering and publishing the information. In determining whether the Defendant’s actions were fair and responsible, weight has to be given to the professional judgment of the journalist, author or editor. The decision must also take into consideration the practical realities under which the judgment was made: these are different from those of a court acting with hindsight and leisure.

The Court of Appeal concluded that on the analysis of the facts and context as a whole, the defence of responsible journalism had been established.