IN DECIDING whether qualified privilege attached to a publication, the court had to ask itself the single question whether in all the circumstances the duty/interest test, or the right to know test, had been satisfied.
The Court of Appeal allowed the appeal of Times Newspapers Ltd against a decision that it had libelled Dr Grigor Loutchansky in two articles published in 1999.
The claimant, who was an international businessman of dual Russian and Israeli nationality, commenced proceedings against the defendants, alleging that they had libelled him in two articles published in The Times in 1999. A year later he commenced a second action in respect of the continued internet publication of the same two articles on the newspaper's website after 21 February 2000.
The articles alleged that the claimant was the boss of a major Russian criminal organisation and was involved in, amongst other things, money- laundering and the smuggling of nuclear weapons. The defendants had never disputed that both articles were defamatory of the claimant. Their sole defence was that of qualified privilege.
The judge ordered a split trial on the issues of liability and quantum. At the end of the trial on liability he ruled that the defence of qualified privilege was not available to the defendants in respect of either article. He held that the test to be satisfied before the defence of qualified privilege could be invoked was whether a publisher would be open to legitimate criticism if he failed to publish the information in question.
The defendants appealed. They argued that the test in relation to the defence of qualified privilege was whether in all the circumstances other than the conduct of the newspaper, the subject matter of the communication was in the public interest, giving rise to a prima facie occasion of qualified privilege; and the newspaper had failed to comply with the ethics of responsible journalism so as to abuse the occasion of privilege. …