When the Reynolds privilege defence was created by the House of Lords some five years ago, many thought that it would substantially widen the extent of the Article 10 right conferred on the media by the European Convention on Human Rights, and the scope for reporting matters of public interest would be considerably widened.
Since then, virtually every Reynolds defence has, however, failed. The most recent Court of Appeal decision indicates that the standards expected of any journalist seeking to rely on this defence will remain high. This case was also used by the Court of Appeal to stress the public interest requirement of the Reynolds test.
The Wall St Journal was appealing against the decision of Mr Justice Eady in rejecting its qualified privilege defence in an action brought against it by Mr Jameel over allegations of support for Al Qaeda. In particular the Wall St Journal sought to persuade the Court of Appeal that the judge had misdirected the jury as to the application of the presumption of falsity to the defence of qualified privilege, that he had applied the wrong test, and that the presumption that the Wall St Journal had suffered damage was incompatible with Article 10 of the Convention.
The Court of Appeal confirmed that the test was whether the publisher had acted as a responsible journalist in publishing the article. That would be assessed on how the position would have appeared to the publisher at the time of publication. The truth or otherwise of the article was not normally relevant, but the jury had to be directed to presume that the defamatory allegation was false when considering liability and damages, while not applying that presumption when resolving issues of fact to be considered in deciding whether the defence of qualified privilege should not apply.
The Court of Appeal affirmed Mr Justice Eady’s conclusion that the phrase ‘responsible journalism’ was insufficiently precise to be the sole test for this form of privilege, and that not only had responsible journalism to be demonstrated, but the subject matter of the publication had to give rise to a public interest that it should be published. It was not sufficient that the public might be interested in receiving the information. The Court of Appeal held that the responsible journalism test required a belief on the part of the journalist in the truth of the article’s defamatory implications, which accordingly has become a further obligation on the part of the defendant.
The constitutional difficulty with the Reynolds defence is that if it is established by the publisher by virtue of his Article 10 rights, then the Article 8 right of the claimant to his reputation is lost. This can have catastrophic financial and personal consequences for an individual, and can be equally devastating for a corporation. It appears that the Court of Appeal recognised this in setting the threshold of responsible journalism at a high level in order to keep a proper balance between the Article 8 and Article 10 rights which are engaged in such cases.