14 October 2019


International Cases

COLIN FULTON v. SUNDAY NEWSPAPERS LIMITED

Ireland

11.08.2017

Civil

Reasonableness is a more demanding objective standard requiring the publisher to satisfy the Court that, publication would not constitute an abuse of the freedom of the press

Present is an appeal against the decision of Trial Judge on 9th December, 2015 in which he rejected the Appellant's claim for damages and injunctive relief under the Protection from Harassment (Northern Ireland) Order, 1997 ("the 1997 Order"). The Appellant resides in an area of Belfast off the Donegall Road known as The Village. In his Statement of Claim, he was described as "an active member of the Progressive Unionist Party ("the PUP") but otherwise unemployed". The Respondent company publishes the Sunday World newspaper in Dublin and has a Northern Edition sold in Northern Ireland. The Appellant complained before the lower Court that, the Northern edition of this newspaper published 28 articles about him between 26th August, 2012 and 5th January, 2014 making allegations "of a serious, inflammatory and highly controversial nature".

There is a difference between rationality and reasonableness. As Lord Sumption demonstrated in Hayes v Willoughby, rationality applies a minimum objective standard to the relevant person's mental processes importing a requirement of good faith, some logical connection between the evidence and the reasons for the decision and an absence of arbitrariness. Reasonableness is a more demanding objective standard requiring the publisher to satisfy the court that the circumstances are such that publication would not constitute an abuse of the freedom of the press. It is not sufficient that the publisher suspects or believes on reasonable grounds that the allegations are true. The additional factor in this case as found by the trial judge was the public interest in exposing this alleged paramilitary influence in a loyalist area of Belfast which the investigations conducted by the newspaper uncovered. In making his judgment about the reasonableness of the conduct, the learned trial judge took into account the seriousness of the allegation and, in the appellant's favour, the fact that he had not been arrested or questioned by the PSNI about these serious allegations. That was a point to which the learned trial judge paid particular attention.

It is an entirely appropriate role for the press to draw to the attention of the public allegations of serious wrongdoing. In doing so, the press must act responsibly since otherwise such conduct is not likely to be found to be reasonable. It does not follow, however, that there is a burden upon the press in such a situation to demonstrate the truth of the allegations in order to resist a claim for harassment. That would be to import concepts from defamation law which do not apply.

In considering reasonableness in the context of investigative journalism, there is a public interest in examining allegations of criminal behaviour by paramilitaries linked to the UVF in the South Belfast area with a view to publication. The articles of which complaint was made identified a number of others as well as the Appellant as being involved in those enterprises. The role of the press in exposing alleged wrongdoing is all the more important where the PSNI accepts that, there is a problem of paramilitary criminality but is unable to take effective steps to stop it.

The public interest on its own could not, however, be sufficient to establish the defence. The bona fides of the reporters and the nature of the investigation were also material. The learned trial judge was satisfied that, the journalists involved had checked and rechecked their sources prior to publication and continued to publish material about what was alleged to be an ongoing criminal enterprise. The association of the Appellant with other named alleged members of the UVF was consistent with the information provided by the sources. The fact that, his house was the only house in his street from which a UVF flag hung was not known to the respondent but it supports the inference that the appellant publicly demonstrated his adherence to the UVF in a range of different ways. Although, as indicated, the Appellant complained about the absence of a right of reply, it is frankly astonishing that it took so long before any issue about the publication of these articles was taken with the Respondent newspaper and it is of some note that the learned trial judge formed the view that the Appellant relished his notoriety. The absence of any complaint at an early stage is a relevant fact in the Respondent's favour on the issue of publication.

Many of the elements of responsible journalism identified by Lord Nicholls in Reynolds were found to be satisfied by the learned trial judge in this case. There is no reason to disturb the finding of the learned trial judge that, the Respondent demonstrated that its approach was reasonable in the circumstances and that the publication should be seen as a robust expression of press freedom which the courts have a duty to protect. The appeal is dismissed.

Tags : Publication Articles Damages Grant

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