Charman v Orion Group Publishing Group Ltd & Ors

Reportage is a narrow form of qualified privilege. It protects a fair and neutral report of attributed allegations as allegations, not a publication that adopts them or turns source material into the author’s own investigative account. The Reynolds defence is available to any publisher, including a book author, where the subject is of public interest and the gathering and presentation of the material were responsible and fair. The Reynolds factors are pointers, not hurdles. The assessment must be practical and flexible, consider the work as a whole, and give proper weight to professional editorial judgment without hindsight. A report need not give equal weight to unequal material. The book was therefore protected by qualified privilege.

The claimant, a former Metropolitan Police detective constable, brought libel proceedings concerning passages in a book about police corruption. The first stage of the trial concerned meaning. At the qualified-privilege stage, Gray J rejected the common-law and statutory privilege defences in a judgment reported at [2006] EWHC 1756 (QB) and [2007] 1 All E.R. 622.

The defendants appealed. The principal issues were whether the passages constituted reportage, whether the author and publishers had acted responsibly under the Reynolds doctrine in publishing a complex book based on disputed material, and whether the statutory privilege for reports of proceedings applied.

1. Disposition. The appeal was allowed unanimously. The passages complained of were protected by qualified privilege. Ward LJ gave the leading judgment, with Sedley and Hooper LJJ agreeing.
2. Reportage. Reportage protects a report of the fact that defamatory allegations were made, rather than a publication adopting the truth of those allegations. The report must be fair, disinterested and neutral when read as a whole. Accurate attribution alone is insufficient. The book was an investigative account assembled from published and confidential material. Its overall effect was to tell the author’s own story of corruption, not merely to record allegations and responses. It therefore did not qualify as reportage: Roberts v Gable [2007] EWCA Civ 721. Sedley LJ added that reportage is not logically confined to reciprocal allegations, but that observation was not necessary to the result.
3. Adoption. The single objective meaning of the publication does not determine whether allegations have been adopted. The court should compare the source material with the resulting publication and ask, as a matter of ordinary common sense, whether the author made the allegations his own. Additions, omissions, comment, elaboration and the context of the work are relevant. The single-meaning rule should not be imported into this different question: Bonnick v Morris [2002] UKPC 30.
4. Responsible journalism. The Reynolds privilege applies to material published in any medium, including books. Once the subject is of public interest, the question is whether the information was gathered and published fairly and responsibly: Reynolds v Times Newspapers Ltd [2001] A.C. 127; Jameel v Wall Street Journal Europe SPRL (No. 3) [2006] UKHL 44. The publication must be assessed as a whole. The Reynolds factors are non-exhaustive pointers, not hurdles. The court must use a practical and flexible approach, give weight to professional editorial judgment, and avoid substituting hindsight for the author’s contemporaneous assessment.
5. Application. Police corruption was a matter of grave public concern. The author did not rely solely on Brennan’s account. He researched the surrounding events, consulted sources, considered the claimant’s public case, and verified material from the criminal proceedings. The book was entitled to present evidence that supported suspicion without giving equal weight to every exculpatory matter. The claimant and his associates had themselves placed their account and attacks on the police investigation in the public domain. The judge had therefore applied too exacting a standard and had failed to consider the book as a whole. The author had acted responsibly.
6. Statutory privilege. Although it was unnecessary to decide the issue after the Reynolds defence succeeded, the court indicated that the book gave a fair portrayal of the relevant trial and parliamentary debate. The statutory privilege under Defamation Act 1996 s. 15 would therefore also prevail to that extent.

1. Court of Appeal (Civil Division) — The appeal was allowed. The passages in the book were held to be protected by qualified privilege.
2. Queen’s Bench Division — Gray J rejected the qualified-privilege defences at the preliminary issue stage in [2006] EWHC 1756 (QB), reported at [2007] 1 All E.R. 622.