Prince Radu of Hohenzollern v Houston & Anor

Qualified privilege for responsible journalism is determined by evaluating all the circumstances, including whether publication was responsible and fair. The Reynolds factors are non-exhaustive pointers, not mandatory hurdles, and their weight varies. Failure to seek the subject’s account is not an inflexible rule, but may be important where serious allegations are made and the subject is an obvious source. The claimant need not prove that contact would have altered the publication. An appellate court should respect the trial judge’s evaluative assessment and intervene only for an error of principle or a plainly wrong conclusion.

The claimant sued the editor and publisher of a magazine over an article alleging that his Romanian royal title was bogus, that he relied on a forged instrument, and that he had served in the secret police. Eady J held that the publication was not privileged and was not published on an occasion of privilege: [2007] EWHC 2735 QB. The defendants abandoned an appeal on meaning and obtained permission to appeal on privilege. The central issue was whether the judge had misapplied responsible-journalism principles by treating verification and failure to seek the claimant’s side as mandatory requirements, while giving insufficient weight to editorial judgment and Article 10.

1. Appeal dismissed. May LJ delivered the judgment, with Moore-Bick and Lawrence Collins LJJ agreeing.
2. Responsible journalism. Qualified privilege is assessed by reference to all the circumstances. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 establishes non-exhaustive factors or pointers, not mandatory hurdles. Their weight varies according to the case. Jameel v Wall Street Journal [2007] 1 AC 359 confirms that the publisher must show reasonable steps to verify and that the question whether publication was fair and reasonable is fact-sensitive. Charman v Orion Publishing Group Limited [2008] 1 All ER 750 reinforces the need to assess the publication as a whole, while giving due weight to editorial discretion. Roberts v Gable [2008] 2 WLR 129 illustrates that the inquiry remains evaluative rather than mechanical.
3. Failure to seek comment. Not approaching the claimant or his representatives was not an automatic bar to privilege. It was, however, a relevant and important factor. The claimant did not have to prove that an approach would have changed the article. The question was whether it was irresponsible not to ask, particularly because the allegations were serious and the claimant was an obvious source. A serious charge should be accompanied by the gist of any explanation already given.
4. Appellate restraint. The privilege decision is an evaluative judgment of fact, heavily fact-dependent and value-laden, involving a balance between freedom to publish and individual rights under the European Convention of Human Rights. The appellate court should not interfere unless the judge erred in principle or reached a plainly wrong conclusion. Galloway v The Telegraph Group [2006] EMLR 221 and Mersey Care NHS Trust v Ackroyd [2008] EMLR 1 supported that approach.
5. Application. Eady J was entitled to find that the article was one-sided and unbalanced, relied principally on sources aligned with one side of the dynastic dispute, failed to approach the claimant’s side, and omitted his public denial of the secret-police allegation. Editorial judgment deserved weight but could not cure those defects. No error of principle or plainly wrong conclusion was shown. Order: appeal dismissed.

• Court of Appeal (Civil Division) — On the privilege appeal, the court dismissed the defendants’ appeal. The challenge to the ruling on meaning was not pursued. Judgment: [2008] EWCA Civ 921.
• High Court (Queen’s Bench Division) — Eady J held that the publication was not privileged and was not published on an occasion of privilege. Judgment: [2007] EWHC 2735 QB.