The High Court's recent judgment in the libel claim brought by former Labour MP Anna Turley reinforces the need for journalists to ensure they have made sufficient efforts to verify underlying allegations, and to allow a reasonable amount of time for subjects to respond to those allegations (particularly where publication is not urgent), if they hope to rely on the s.4 defence of public interest. It also gives reflection on a publisher's choice of words, which can undermine the objective levels of the test.
Ms Turley sued both Unite the Union and the editor of The Skwawkbox, a left-wing political blog, over an article reporting that she had falsely declared herself to be "unwaged" in order to join the 'Community' section of Unite – at a significant discount – to vote against the incumbent General Secretary, Len McCluskey. The seriously defamatory meaning, the Judge held, was that there were reasonable grounds to suspect her of dishonesty.
Stephen Walker, the blog editor, had already admitted liability for publication ahead of trial, but Unite was found to be jointly liable as a result of the "astonishing" press statement it made (reproduced verbatim within the article), including that "anyone joining on a fraudulent basis will prompt an investigation…". The statement, on its own and in context, bore a meaning arguably more defamatory than the article as a whole, and was "the equivalent of throwing a substantial quantity of fuel over a very small fire". This is where the Unite spokesperson had been given "absolutely no reason" to think that the claimant had engaged in any sort of deception or dishonesty; indeed the facts suggested she had simply made a mistake.
The defendants' truth defences failed, and their public interest defences failed. They were unable, as required by s.4 Defamation Act 2013, to prove that they had reasonably believed publication to be in the public interest. The Unite spokesperson could not have had a reasonable belief given her "wholly unwarranted" use of the word "fraudulent". The court accepted, on the other hand, that Mr Walker believed that publication was in the public interest, but not that his belief was reasonable.
Importantly, he failed to complete a basic and obviously important avenue of investigation: he was told by sources that the claimant had made a "false declaration", but then failed to ask the Unite spokesperson whether, as part of the online joining process, the claimant was required to make any declaration of eligibility (she was not), nor did he establish this himself (which he could easily have done). Worse, he twice presented that allegation as fact: "It can never be in the public interest for a journalist to misrepresent in an article the information or evidence that s/he has obtained."
Mr Walker also failed to give the claimant an adequate or fair opportunity to provide any comment or rebuttal. He failed fairly to put the allegations to her, and he imposed an arbitrary and unreasonable publication deadline – where there was no particularly urgency to publish – giving her just over 3 hours to respond: "Whilst there may be a case where the urgency is such that a timeframe of 3 hours will be found by the Court to be reasonable in the particular circumstances, I would expect such cases to be rare."
Albeit obiter, the Judge also suggested that the need to prove reasonable belief appeared to require each defendant relying on the defence of public interest individually to satisfy that requirement, which might throw up interesting issues where several people (within the same organisation, for example) are jointly liable but not all have turned their mind to that question.
The Judge awarded damages of £75,000, including aggravated damages (without making a specific award), referring to the defendants' conduct during the trial, which included making additional allegations that the claimant had conducted her claim dishonestly and was "not fit to be an MP". He accepted that this had seriously aggravated the harm caused to Ms Turley's reputation and her distress.
Unite has stated that it intends to appeal.