Content in UK Law

The coverage of Mr Galloway's denials is relevant to qualified privilege, to which I shall turn in due course, but also to meaning. One has always, in such cases, to focus on the bane alongside the antidote. Crucial is the dismissive treatment given to Mr Galloway's responses in his interview with Mr Sparrow on 21 st April. Whether or not the content of that interview was fairly and accurately reported is a matter which is relevant to Reynolds privilege.

First, it is necessary for me to consider whether The Daily Telegraph did, or did not, adopt any defamatory imputation or imply that it was true. Secondly, this was not a case of politicians or other public figures making allegations and cross-allegations about one another, so as to give rise to a dispute which would itself be of inherent public interest. Fifthly, it would clearly be significant if they went beyond reporting them and made independent allegations or inferences.

Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.

The photographs were taken of Miss Campbell while she was in a public place, as she was in the street outside the premises where she had been receiving therapy. The taking of photographs in a public street must, as Randerson J said in Hosking v Runting [2003] 3 NZLR 385, 415, para 138, be taken to be one of the ordinary incidents of living in a free community.

The public interest that justified publication was in knowing that the allegations had been made, it did not turn on the content or the truth of those allegations. A publication that attracts Reynolds privilege in such circumstances has been described as "reportage". In a case of reportage qualified privilege enables the defendant to avoid the consequences of the repetition rule.

Even in the period before the mid-19 th century, when the majority of prosecutions were privately brought, the identification of criminals does not feature in the reported cases as a proper purpose of the bill of discovery. If prosecution, that will rarely be the applicant's intent. If it were able to be a crime of which the applicant is not a victim, the limited Norwich Pharmacal purpose would be replaced by a practically untrammelled right to disclosure.

But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.