Prince Radu of Hohenzollern v Houston & Anor

Qualified privilege for publication in the public interest depends on responsible journalism. The subject matter may be of genuine public interest, but the allegations must still be assessed in the circumstances as a whole. Relevant considerations include the seriousness of the allegations, the reliability and motivation of sources, verification, urgency, whether comment was sought, whether the claimant’s side was fairly presented, and the article’s tone. The Reynolds factors are illustrative rather than cumulative hurdles. Reportage is a distinct and restrictive form of privilege. It requires fair and neutral reporting of the fact that allegations were made, without adopting them as true. Where grave allegations of dishonesty or criminal conduct are published without giving the subject a reasonable opportunity to respond, the defence will ordinarily fail.

The claimant, Prince Radu of Hohenzollern, sued the editor and publisher of an article alleging that his title was bogus, that he relied on a forged document, that he used the title for personal gain and access to official roles, and that he had served in the Romanian secret police. The defendants relied on reportage, common-interest privilege and the public-interest privilege explained in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The court determined privilege as a preliminary issue. The central questions were whether the article fairly and neutrally reported a public controversy or press conference, and whether the steps taken before publication amounted to responsible journalism.

1. The preliminary issue was resolved for the claimant. The defendants failed to establish reportage or Reynolds privilege.
2. Reportage is applied restrictively. It protects accurate, fair and neutral reporting of the fact that allegations have been made, rather than publication of the allegations as adopted truths. Verification of the underlying allegations is not necessarily required in genuine reportage, but the article must identify the controversy fairly and present the opposing positions. The article was not a true report of the press conference: it included allegations never made there and omitted the claimant’s response. It therefore failed the criteria explained in Roberts v Gable [2007] EMLR 457 and Charman v Orion Publishing Group [2007] EWCA Civ 972.
3. The subject matter was of public interest, including its international dimension. That did not make publication of every allegation privileged. The allegations about the claimant were central to the story and had to be considered as part of the overall public-interest publication.
4. The ten Reynolds matters are illustrative considerations, not hurdles. The assessment must be made in the round. Here the allegations were exceptionally serious; the sources were partisan or lacked direct knowledge; there was no urgency; the defendants failed properly to verify the document; they did not seek comment from the claimant or those representing his side; and the article omitted his public denial of the secret-police allegation. The article conveyed a persuasive case against him rather than merely raising queries.
5. The burden of establishing privilege lay on the defendants. The claimant was not required to prove that an approach before publication would have changed the article. The relevant question was what responsible journalism required immediately before publication.
6. The balance between freedom of expression and reputation required an intense focus on the facts, including the interests protected by Articles 10 and 8. In the circumstances, fairness was lacking and the defendants were not entitled to privilege. They would therefore have to prove substantial truth if relying on justification.