Galloway MP v Telegraph Group Ltd.

Qualified privilege for responsible journalism requires an objective assessment of the publication as a whole. The public interest in the subject matter does not itself create a duty to publish grave, unverified allegations. The court must consider the seriousness and source of the information, verification, urgency, opportunity to comment, inclusion of the claimant’s response, tone and circumstances of publication. Neutral reportage is unavailable where a newspaper adopts and embellishes allegations. In a Reynolds case, these value judgments are ordinarily for the judge; disputed primary facts may be left to a jury, but jurors should not be asked to determine evaluative questions. Fair comment requires comment on facts truly stated and cannot protect factual allegations or comments based only on unproved accusations.

George Galloway MP sued Telegraph Group Limited over articles and leaders published in The Daily Telegraph on 22 and 23 April 2003. The articles reported Iraqi documents found in Baghdad and conveyed that he had been secretly paid by Saddam Hussein, had profited from the oil-for-food programme and had used the Mariam Appeal as a front.

The defendant denied justification and relied principally on qualified privilege under Reynolds v Times Newspapers Ltd, contending that the publications were neutral reportage of matters of public concern. It also pleaded fair comment in relation to leaders and headlines. The issues were meaning, privilege, fair comment and damages.

1. Meaning. The articles, read in context and as a whole, conveyed that Mr Galloway had personally received substantial sums from Saddam Hussein’s regime, diverted oil-for-food money, used the Mariam Appeal for personal enrichment and had acted in a manner tantamount to treason. The references to denials did not neutralise those meanings.
2. Judge and jury. Under Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, the judge makes the objective value judgments required by qualified privilege. A jury may determine genuinely disputed primary facts, but should not be burdened with questions about responsibility, fairness, tone or the overall public interest.
3. Qualified privilege. The documents were serious allegations from an inherently unreliable source and had not been independently verified. There was no sufficient urgency to justify omitting verification or denying Mr Galloway a proper opportunity to respond. The telephone interview concerned funding of the Mariam Appeal, not the intended allegations of personal enrichment. The published articles adopted the allegations, used a condemnatory tone and embellished the documents. They were therefore not neutral reportage and the duty-interest or right-to-know test was not satisfied.
4. Fair comment. The leaders and headlines contained factual imputations, or comments based on unproved conduct. The conditional language in parts of the leaders did not convert the publication into fair comment. The defence failed because the defendant neither proved the underlying facts nor commented upon facts truly stated.
5. Damages. In the absence of justification, the defamatory allegations were presumed false. The court could not defer the claim pending a possible Parliamentary investigation. Having regard to the gravity of the allegations, the absence of an apology and aggravating features in the conduct of the defence, damages were assessed at £150,000.