Sometimes one can only think the tabloid press will disappear into the black hole of its self-created paradoxical backside. Surely the moment has arrived with Kelvin MacKenzie demanding an apology from the police for giving him information that led to the notorious “The Truth” headline in his Sun blaming fans for much that went wrong in the 1989 Hillsborough disaster.
His argument is that other papers used the same police information but he is the only editor in fear of heading towards the north-west lest he suffer vilification or worse.
The issue at the heart of this is whether information from the police, in the middle of an investigation, can be treated as “the truth” for the purpose of relaying it to readers. And here’s the crashing, ironical paradox. This is what Kelvin’s view was last year when the Guardian took too literally something the police had told them about his former employer’s role in the Millie Dowler phone hacking affair:
“So the cops in Surrey told you [the reporter] the story was true – or so you claim. The cops at the Yard told you it was true – or so you claim. Every aching bone in your reporter’s anti-Murdoch body told you it was true. But there was a problem – as we all now know today. The Milly Dowler story that led The Guardian on that fateful day back in July was untrue: there is no evidence to show that the News of the World deleted Milly’s voicemails.”
There was no such evidence – except for what the police suspected (and possibly even believed to be true) and had suggested to the Guardian, which accordingly printed it. Later everyone rowed back and an apology was issued (MacKenzie says it was unintelligible – but that’s the Guardian for you.)
MacKenzie gives a reason why the Guardian wanted to believe the police’s comments – it hates News International. He does not explain why “every aching bone” in his own editorial body wanted to believe that Liverpool fans urinated on police officers resuscitating the dying and stole from the dead. He does not explain why all the lies used to obscure official failings during the disaster were to be treated as “The Truth”.
He may be resting his case on some imperfectly understood legal concept of “publishing in good faith” or “qualified privilege” with regard to the statements of certain people in authority, including the police. If so, he has redefined those terms beyond recognition.
The police must, of course, be allowed to tell the press things about matters of public interest – naming people they wish to find and arrest for an alleged offence before the allegation has been proved, for instance. If there were to be some comeback, such as a libel action, if the allegation is ultimately disproved then the job of the police and the press (in its public interest role) would be very difficult.
‘Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive’ – Lord Nicholls
The press is therefore able to publish material from such figures of authority without fear of being sued, on the basis of qualified privilege. But there are severe limitations. Public interest is crucial as is “good faith” and lack of malice – meaning that, if it turns out to be untrue, there was no underhand reason for publishing the information in the first place – no personal vindictiveness or, arguably, commercial reason that overrode public interest or objective assessment of the use the information was put to.
Police statements are among the statutory list of areas that are covered by qualified privilege in Schedule 1 of the Defamation Act 1996 but in the context of their “governmental functions” – not off-the-record material that almost always has a self-serving purpose. Official comments by the police carry qualified privilege “subject to explanation or contradiction” – in other words if they turn out to be untrue, the organisations that published them must also publish the true facts. If they do so they will not be held liable for defamation.
We know now that the police were not acting according to their “governmental functions” in smearing Liverpool fans, and only if they had issued official statements for justifiable reasons would the press have been covered.
That does not mean that unofficial statements are out of bounds for the press. If they have relied on statements from an authoritative source to publish matters of public interest which turn out to be wrong and defamatory, the news organisation may run the “Reynolds defence”.
This was established when the Albert Reynolds, who had quit as Irish taoiseach, sued the Sunday Times for a claim that he had misled the Irish Parliament.
Reynolds v. Times Newspapers Limited and Others (1999) in effect sets out guidelines for good journalism. If the rules are followed in investigating and reporting a matter of public interest, in particular significant but unsubstantiated allegations, then the media may avoid defamation actions if the claims turn out to be wrong.
Lord Nicholls notes the Sunday Times’s position:
“Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive.”
This is a good summation of the position coming out of Reynolds. One of the important pieces of guidance for reporters wishing to rely on a “Reynolds defence” is that, however authoritative the figure is whom you are quoting as a source for contentious material, it should not be reported as fact. It should be reported as a report, not as truth. Claiming it is truth rather than a fair and accurate, non-malicious, report of a contention is likely to defeat the qualified privilege argument.
Now, it should be noted that the Reynolds rules are in the context of defence against libel, not against simply printing untrue stuff and finding reasons for self-exculpation. You can get away with publishing any old todger (as the Sun does) as long as no one is likely to sue you. And of course MacKenzie would not have had the benefit of the 1999 Reynolds case when his “The Truth” headline sprang to mind.
But the rules are simply good journalism – and apparently the reporter who wrote the story on which the headline was attached was aware of the issue. Harry Arnold has said in his defence that he challenged MacKenzie about the headline before it was published, saying: “You can’t say that. And he [Mackenzie] said ‘Why not?’ and I said, because we don’t know that it’s the truth. This is a version of ‘the truth’.”
That’s the nub of the issue – and that is why, the truth is, Kelvin is wrong. For once we really should shoot the messenger.
Note: This Guardian piece gives some insight into how journalists treated the story
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