Jameel - an Unfortunate Decision

By way of Roy Greenslade, I learn of an interesting piece of research from Cardiff University for a book about the state of British journalism, "Flat Earth News" by Nick Davies.Davies writes:

"They found two striking things. First, when they tried to trace the origins of their 'facts', they discovered that only 12% of the stories were wholly composed of material researched by reporters. With 8% of the stories, they just couldn't be sure. The remaining 80%, they found, were wholly, mainly or partially constructed from second-hand material, provided by news agencies and by the public relations industry. "Second, when they looked for evidence that these 'facts' had been thoroughly checked, they found this was happening in only 12% of the stories."

You are of course free to believe that Irish journalism is better. I myself doubt it.

That being so, it strikes me as alarming that so many lawyers have such enthusiasm for the so-called Reynolds defence, which in effect permits publication of defamatory material provided that it relates to a matter of genuine public concern and is the result of responsible journalism.

Unfortunately, there is a great risk that the Jameel case will be seen as setting the standards in relation to the application of these provisos, and I think that it sets them poorly. I have elsewhere referred to my horror at the content of the judgments in that case, and it is now past time to elaborate on what I meant.

The facts of that case were that the Wall Street Journal ("WSJ") named Jameel in a story about Saudi Arabian businesses suspected of involvement in assisting Al Quaeida. That this was capable of being a very defamatory reference hardly needs elaborate explanation. However, if it was true, publication would be quite legitimate, even without invoking the relatively novel Reynolds rule.

The WSJ could not prove that it was true, and instead maintained a Reynolds defence, on the basis that it was a story of public interest (not simply of interest to the public) and that it was a product of responsible journalism. The story allegedly originated in Saudi Arabia, where the WSJ journalist based there claimed to have six separate sources, but it was also confirmed (after a fashion) by a U.S. government source to a WSJ colleague in New York. None of the sources was identified by name, but much detail was given of how the American confirmation was obtained.

The plaintiff succeeded at trial and again, although on much narrower grounds, in the Court of Appeal. The House of Lords reversed.

What concerns me is how the House of Lords (including on this occasion Lady Hale) treated the question of how the public interest justified the naming of Jameel, the endorsement it seemed to give to the use of entirely anonymous sources, and its apparent indifference to the issue of media manipulation, especially by "official" sources. I am also a bit uncomfortable with the rather easy acceptance of the newspaper's argument that the story was of urgent public interest.

Naming Jameel

I would question whether it was justified to name any of the businesses, given the inevitable effect on their reputations, and the flimsiness of the evidence on which the story was based. Jameel had a further objection, in that he was not afforded a reasonable opportunity to comment in advance of publication.

Lady Hale's opinion is representative: "Without names", she said,"the impact of the story would be much reduced". Of course it would, but its defamatory character would be obliterated. The Lords appear to legitimise a "sexing up the dossier" approach as part of responsible journalism.

As to the failure to obtain a comment in advance, they seemed to blame a Jameel subordinate who declined to wake Jameel at 2 a.m.for the sole purpose of giving a reaction. It was also observed that subsequent events proved that he could not have commented in any significant way. This is bad circular reasoning and probably incorrect: Jameel obtained a denial from the Saudi authorities of the story. The Lords dismissed this; "they would say that, wouldn't they ?" well summarises their views. It should be noted that the WSJ admitted that the story would have been no better or worse 24 hours later.

Use of Anonymous Sources

The main horrifying thing about the Jameel judgments is the apparently complete indifference of the Law Lords to the fact that the defamatory story at issue was based entirely on information from sources whose trustworthiness is conjectural. Accepting for the purpose of the discussion that the particular journalists involved were bona fide - this is by no means universally correct, as experience and the research quoted above confirms - why is it a good idea to also accept that their assessment of the credibility of anonymous sources is a valid basis for defaming someone ?

An opportunity for considering how far responsibility can be reconciled with the use and protection of anonymous sources was not taken. (This is a live issue in Ireland at present for reasons other than defamation).

Throughout the judgments, one can detect an undertone of respect almost amounting to deference for the stature of the WSJ, most striking in the speech of Lady Hale:

We have to judge the steps which are known to have been taken against the background of the style and tone of the publication in general and the article in particular. This is not a newspaper with an interest in publishing any sensational information however inaccurate (or even in some cases invented). It is, as the journalist quoted by my noble and learned friend said, "gravely serious" (indeed some might find it seriously dull). We need more such serious journalism in this country and our defamation law should encourage rather than discourage it.

Even Homer nods, though, (and he would certainly nod off if left with only the WSJ to read !) and the general reputation of a defendant should not affect consideration of the merits.

Media Manipulation

Anonymous sources, fairly obviously, make it much easier to manipulate public opinion. Sometimes, this manipulation is a product of conscious media collusion for political or other reasons. More often, the media is an unwitting victim of the manipulation which it then propagates more widely.

I take it that this was not a possibility in the Jameel case, or was anyway not canvassed as such before the Law Lords, but it is very disappointing that they did not show themselves as alert to the issue. They might have calibrated their language differently, in what was always going to be seen as a landmark decision, if they had adverted to this.

Public Interest

The gravamen of the impugned WSJ piece was, the Law Lords agreed, that the Saudi authorities were cooperating with the U.S. in the campaign to exterminate Al-Quaeida. This, it was suggested, almost ipso facto made its publication justifiable, even necessary, in the public interest, against a background of considerable suspicion of Saudi Arabia after the involvement of so many Saudi nationals in the 9/11 attacks.

I find that line of thinking unpersuasive. It appears to me to identify the public interest with the agenda of the government, but perhaps it's just to me that it so appears.