Around the recent sacking of Nadhim Zahawi for breaches of the ministerial code, there have been renewed calls to act against the use of lawyers ‘by powerful figures to silence legitimate criticism’ (from the Guardian).
The irony of such calls is that in the case of Mr Zahawi not only was the deployment of lawyers ineffective; it became counter-productive, adding further potency to the story which led to Mr Zahawi’s political demise.
In an attempt to stifle the excellent investigative reporting of Dan Neidle into his tax affairs, Mr Zahawi engaged Osborne Clarke who engaged in some ill-judged correspondence which included a threatening letter which was marked ‘Without Prejudice’ - which plainly it was not, and claims that their correspondence was confidential so it would be unlawful to publish it - which was also plainly wrong. However, the important factor which appears to be overlooked by some, is that these tactics failed.
David vs Goliath
Neidle himself makes the point that unlike some other journalists, he was a ‘Goliath’ facing a ‘Goliath’ and therefore enjoyed better protection than some. Any journalist writing for a major title or broadcaster is similarly in the position of being a ‘Goliath’. However, what happens to those who are genuine ‘Davids’?
One conspicuous absentee from the media coverage, which whilst legitimate is also hugely self-serving, is that in the 2013 Defamation Act, a defence was created which affords a complete defence to allegations published against public figures on matters of public interest. Section 4 provides a defence for publications ‘on a matter of public interest’, where ‘the statement was, or form part of, a statement on a matter of public interest; and the defendant reasonably believed that publishing a statement complained of was in the public interest.’
In most cases, the first element is plainly present. As for the second, so long as the journalist takes the sensible precaution, which all journalists should in any event, of putting the allegations to their subject and then reflecting the response, then they are more-or-less guaranteed to secure this defence.
As to the question of resources, it should not be forgotten that Osborne Clarke did not issue proceedings. When I have done defendant work (as I have all the 30 years’ I have been a media lawyer), my experience is that a robust letter setting out the terms of the Section 4 defence will normally be the end of the matter. There are several lawyers (of which I am one) who will do uncharged work to defend good quality journalism.
Journalists also have the National Union of Journalists to turn to. My suggestion to the NUJ is that there should be an optional supplement to a subscription which provides a fund for (at least) initial legal advice when a ‘Goliath’ appears on the horizon.
All this means is that all the provisions that are required for the defence of ‘legitimate’ criticism are already in place. It is however also essential that everyone (including public figures and companies) have some legal and regulatory protection against false allegations, the publication of which is also contrary to the public interest.
Article written by media lawyer Jonathan Coad
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