Roberts & Anor v Gable & Ors

Reportage is a form of Reynolds qualified privilege. It applies where the publication, viewed objectively and as a whole, neutrally reports the fact that attributed allegations were made in a dispute of genuine public interest, without adopting or embellishing them.

Verification of the allegations’ truth is then unnecessary because their making, rather than their truth, is the subject of the report. The publication must nevertheless satisfy the standards of responsible journalism. Adoption, unfairness or a presentation which undermines the claim to publish in the public interest may defeat the protection. The seriousness of alleged criminality remains relevant but does not exclude reportage where the controversy itself is of genuine public interest.

The claimants, two active members of the British National Party, brought libel proceedings over an article in Searchlight. The article reported allegations and counter-allegations arising from an internal party dispute, including allegations that the claimants had stolen rally funds and made threats of serious violence.

A Master directed the Reynolds qualified privilege defence to be tried as a preliminary issue. Eady J upheld the defence and dismissed the claim: [2006] E.M.L.R. 23. The claimants appealed, contending that the publisher had adopted the allegations and that responsible journalism required verification.

The central issues were the nature and limits of reportage, its relationship with Reynolds privilege and the repetition rule, and whether this particular article was neutral, responsible reporting of a matter of public interest.

1. Appeal dismissed. The article was protected by qualified privilege as responsible reportage. Ward LJ gave the leading judgment. Sedley and Moore-Bick LJJ agreed with the disposition, Sedley LJ adding observations about the restrictive treatment of the defence.

2. Reportage is not a separate defence. It is a special example of Reynolds qualified privilege and must retain the duty-and-interest foundation of qualified privilege. A generic privilege for either political speech or reportage would be inconsistent with that foundation.

3. The defining feature of reportage is that, objectively assessed from the publication’s overall thrust, it reports the fact that attributed allegations were made rather than presenting them as true. In a true reportage case, responsible journalism does not require verification of the allegations’ truth. The repetition rule remains applicable to justification, but it does not restrict the scope of qualified privilege.

4. The judge must determine whether the publication has that effect. The journalist’s stated intention is relevant but not decisive. The court must consider the gathering of the information, its presentation, the purpose of publication and all other circumstances. Protection is lost if the journalist adopts or embellishes the allegation, makes it his own, or fails to report fairly, neutrally and disinterestedly.

5. Every reportage publication must still satisfy the standard of responsible journalism. The Reynolds factors remain relevant, adjusted to reflect the distinctive nature of reportage. Seriousness, criminality, urgency, source, tone and the protagonists’ public significance are relevant, but neither urgency nor public-figure status is a precondition. Criminal allegations may fall within reportage if their making contributes materially to a controversy of genuine public interest.

6. The article concerned the political activities and internal divisions of a party seeking electoral support. Its public-interest character was clear. Viewed as a whole, it reported conflicting accusations without taking sides. Sarcastic language and perceptible enjoyment of the controversy did not amount to adoption or irresponsible journalism. The sources were attributed, the opposing position was apparent, the story was current, and the failure to seek comment was understandable. Verification was therefore unnecessary.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Eady J’s determination that the publication was protected by qualified privilege: [2007] EWCA Civ 721.
• Queen’s Bench Division: Eady J tried qualified privilege as a preliminary issue, upheld the reportage defence and dismissed the claim: [2006] E.M.L.R. 23.