Panorama at risk of suit for 'law-breaking' journalism

It was reported in the Sunday Times on the weekend - and in the Sun this morning, but nowhere else - that the BBC Panorama team may be facing a defamation action at the hands of the fertility doctor whose questionable practices they sought to expose in an edition aired in January. I've noted previously that there is also a possibility that criminal prosecutions may be brought.

The allegation seems to be that the BBC was unbalanced in its reporting, in that it focused on the experiences only of undercover reporters who arguably did not receive the most appropriate treatments and didn't present the wider, less prejudicial findings of its investigation. Lord Winston, who appeared on the programme, has expressed his concern that the focus of programme was on the purportedly errant behaviour at the individual clinic rather than on the laxity of the regulatory regime.

Without having seen either the programme or the details of the legal complaint it is difficult to comment cogently, but it seems clear that the doctor's solicitors hope to preempt the use of the Reynolds qualified privilege defence to defamation (that allows media organisations to avoid liability even if they are later proven to be wrong and to have caused damage to reputation so long as the story was in the public interest and was the product of responsible journalism).

It would seem to me that the subject matter of the report was clearly a matter of public concern, and so the focus will be on the satisfaction or otherwise of the responsible journalism test. The court will allow a significant degree of leeway for editorial judgment, and so the mere fact that Panorama adopted the slant it did is unlikely in itself to preclude use of the defence.

On this the BBC might draw succour from the recent House of Lords decision in Jameel v Wall Street Journal Europe [2006] UKHL 44 (if I can be allowed a second self-serving reference for the day, I have a short paper coming out on this topic this month: (2007) Communications Law, 12(2), 52-59). That said, if it can be shown that the programme makers were not even-handed in terms of allowing the doctor to answer the case presented they may be at risk. Its worth noting that the BBC's lawyers seemed content with the programme content.