Curistan v Times Newspapers Ltd

A fair and accurate report of public legislative proceedings which satisfies section 15 of the Defamation Act 1996 attracts qualified privilege. The report must remain recognisably distinct and fair despite any accompanying material. Slight inaccuracies or omissions do not defeat privilege, but materially prejudicial misstatements, excessive commentary or misleading embellishment may do so.

In a hybrid publication containing both privileged reportage and distinct unprivileged material, the repetition rule does not apply to the privileged passages. Those passages provide context for determining the natural meaning of the unprivileged material, but cannot be treated as allegations made by the publisher. If the unprivileged material adopts the reported allegations as true, liability may arise for that adoption while the report itself remains privileged.

The claimant brought defamation proceedings over a newspaper article combining a report of allegations made about him in the House of Commons with the newspaper’s findings about his companies and their accounts. Gray J, in [2007] EWHC 926 (QB), held that the parliamentary passages attracted qualified privilege under section 15 of the Defamation Act 1996. He nevertheless applied the repetition and single meaning rules to the whole article and found a meaning that the claimant was guilty of IRA money laundering and financial malpractice.

The claimant appealed against the finding of privilege. The newspaper cross-appealed against the ruling on meaning. The central questions were whether the additional material deprived the parliamentary report of fairness and whether privileged passages could be treated, through the repetition rule, as allegations made by the newspaper when determining the meaning of its distinct, unprivileged material.

1. The claimant’s appeal was dismissed and the newspaper’s cross-appeal was allowed. Arden LJ delivered the leading judgment. Laws LJ and Lord Phillips CJ agreed with the outcome and the essential reasoning.

2. Section 15 of the Defamation Act 1996 lays down a mandatory rule of qualified privilege for a fair and accurate report of public legislative proceedings, provided the statutory conditions are satisfied. A report may summarise, select and concentrate upon a particular aspect of proceedings. Fairness concerns its presentation. Privilege may be lost through a substantially prejudicial misstatement or through extraneous material which makes the report unfair, including excessive commentary, a misleading headline or material embellishment.

3. The parliamentary passages were recognisably distinct from the newspaper’s own material and accurately conveyed the substance of the parliamentary accusation. The additional material was factual, distinguishable from the report and not excessive. It therefore did not deprive the report of fairness. The newspaper had neither expressly nor impliedly adopted the parliamentary allegations as its own.

4. Intermingling and adoption have different consequences. Unfair intermingling may destroy the reporting privilege itself. Adoption through distinct unprivileged words may make the publisher liable for the adopted allegation, subject to any defence, while leaving the report privileged. Lord Phillips CJ considered that adoption occurs where the added comments mean that the reported allegations are true. Laws LJ expressed doubt about adoption as a separate conceptual tool where the real question is whether the publication remains a fair and accurate report.

5. The repetition rule cannot apply to passages protected by reporting privilege. Its application would nullify or undermine the statutory protection. In a hybrid publication, the privileged passages provide context for interpreting the unprivileged comments, but are not treated as allegations made by the publisher. To that extent the ordinary single meaning rule must also yield.

6. The newspaper’s additional material cast doubt upon the claimant’s rebuttal but did not directly establish IRA money laundering or financial malpractice. Its actionable meaning was therefore that there were reasonable grounds to suspect association with IRA dirty money and involvement in financial malpractice, a Chase level 2 meaning, rather than an allegation of actual guilt.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 432, dismissed the claimant’s appeal against the finding of reporting privilege and allowed the newspaper’s cross-appeal on meaning. The actionable material bore a Chase level 2 meaning.
2. High Court, Queen’s Bench Division: Gray J, in [2007] EWHC 926 (QB), held that the parliamentary passages were protected by qualified privilege but applied the repetition and single meaning rules to the whole article. He found a Chase level 1 meaning alleging actual guilt.