Lord Hutton raises two issues in his report which concern the responsibility of the media in reporting information in circumstances where the rights of individuals (and corporations) risk being infringed. This is the key tension between the rights of the individual enshrined in Article 8 of the European Convention on Human Rights (which a recent European decision confirmed applied also to the reputation of that individual), and the right to freedom of expression enshrined in Article 10 of the Convention.
The conclusion at paragraph 3(ii) of Lord Hutton’s summary is almost a direct quotation from paragraph 280 of his report. Here is the version direct from the report:
“Counsel for the BBC and for Mr Gilligan were right to state that the communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The issue of untruthful allegations of fact in relation to political matters made by the media has been considered recently by the House of Lords in Reynolds v Times Newspapers Ltd … and I set out the relevant passages in the judgments of Lord Nicholls of Birkenhead, Lord Cooke of Thorndon and Lord Hobhouse of Woodborough in appendix 17.”
Lord Nicholls in particular stressed that the Article 10 right is not absolute, and will probably be subject to necessary restrictions in order to protect (where appropriate) the rights of the individual. As he also emphasised: “… it should not be supposed that the protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.”
The Reynolds defence, which is based on an assessment of the responsibility with which a defamatory allegation is made by the media, recognises this essential limitation on the Article 10 right. The vital role played by the media must be protected while at the same time the responsibility which is concomitant with that role must also in some way be recognised.
The second point made by Lord Hutton concerning the legal framework in which the media operates is set out at paragraph 282 of his report:
“I am unable to accept, in the context of Mr Gilligan’s broadcasts, the distinction which he and the BBC rely on, between a report that the BBC believed that the Government probably knew that the 45 minutes claim was wrong and a report that a source had told the BBC that the Government probably knew that the 45 minutes claim was wrong. This is not a distinction recognised by the law in relation to actions for defamation.” (emphasis added)
As Lord Hutton correctly observed, in the UK law of libel both the author and publisher of defamatory words bear legal responsibility for them. Attempts to establish a defence of “mere reportage” have so far failed in this jurisdiction. If a degree of responsibility is to be imposed upon the media, then it follows that the media must apply some judgement as to the worth and reliability of a source to reduce the danger of the public being misled.
Lord Hobhouse in Reynolds said: “There is no human right to disseminate information that is not true.” It is, however, that very right which is enshrined in the Reynolds defence. Therefore, in order to strike a balance between the public interests protected by Articles 10 and 8 of the Convention, the media publisher of defamatory words must have a duty at least to establish whether it is responsible to disseminate them when they are defamatory, and therefore potentially infringe the rights of others.