After failing to establish the Reynolds defence both at first instance and in the Court of Appeal, the claimants in this closely observed legal battle have won their appeal in the House of Lords.
The Issues
There were two issues to be decided by the House of Lords. The first was whether a corporate entity must prove a loss before it can succeed in a libel action. The second was the scope of the “responsible journalism” test in Reynolds defences.
By a majority (Lord Hoffman and Baroness Hale dissented) the House of Lords refused to require corporates to prove financial loss to maintain a libel action. All five Law Lords, however, rejected the approach to the Reynolds defence adopted by Mr Justice Eady in the Court of Appeal as too rigid, holding (by a majority) that no retrial was needed to determine whether in this case the defence had been established.
This summary of the case will concentrate on the comments concerning the Reynolds defence, since the law concerning corporates has not changed. It is clear, however, that the House of Lords has stamped its foot to bring both first instance judges and the Court of Appeal into line by insisting on a flexible approach to the Reynolds defence.
Comment
The fundamental difficulty with the Reynolds Defence is that upholding the Article 10 rights of the journalist/publisher robs the subjects of “untrue and defamatory statements” of their rights under Article 8. This is a problem inherent in all species of qualified privilege defences. However, when it is accorded to the “larger media” then the Article 8 rights of the individual are lost entirely to an organisation which has published those untrue and defamatory statements with a view to profit. Not only does the claimant suffer damage for which there is no compensation, but an untruth about the claimant goes uncorrected which is an injustice to the claimant and leaves the rest of society misinformed.
In these circumstances, it is appropriate that the House of Lords has stressed the need both for responsibility and fairness on the part of editors/publishers before those Article 8 rights which are important not only for the individual, but for society as a whole, are lost.
Advice
For publishers and journalists, this is welcome news because it obliges the first instance courts to be more flexible in deciding when an article which is defamatory should enjoy the protection of legal privilege. The careful documentation of the steps taken to verify the story, and its writing up in a neutral and moderate tone should give a fair amount of legal protection to a story which has a genuine public interest element.
As for those who might be contacted by a media organisation about a potentially defamatory story: you should make it clear that not only do you wish to comment, but also that there is information which (uniquely) has a bearing on the story, and without which it would be irresponsible to publish it. Such communications with the media organisations should be either written or carefully recorded. So far at least as the issue of your opportunity to comment is concerned, you will then be in a position to establish, if that opportunity is not provided, that this was neither fair nor responsible on the part of the media organisation.
A Summary of the Law Lords’ Judgments
Lord Bingham stressed that “The necessary pre-condition of reliance and qualified privilege in this context is that the matter published should be one of public interest“. Since qualified privilege was a “live issue” only “where a statement is defamatory and untrue“, he quoted the judgment of Lord Hobhouse in Bonnick v Morris where he said: “no public interest is served by publishing or communicating misinformation“.
The inherent contradiction of the Reynolds defence is that it does provide immunity to the publisher of a defamatory and untrue statement. As Lord Bingham goes on to observe, however: “the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication“.
Lord Bingham did stress that responsible editorial decisions, while they should be reviewed, should also be judged in the context that they were made: “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“.
Lord Hoffman was the most trenchant in his criticism of the lower courts, and in particular, of the trial judge. His judgment set out a three stage test for the Reynolds defence. The first was “whether the subject matter of the article was one of public interest“. Lord Hoffman said that in order to answer this question “one should consider the articles as a whole and not isolate the defamatory statement“.
If the first question is answered in the affirmative, the next question was whether the inclusion of the defamatory statement was justified. He warned that “the fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose“.
Assuming the first two stipulations are met, the third stage of Lord Hoffman’s test was “whether the steps taken to gather and publish the information were responsible and fair“.
Lord Hope rejected the contention that a “test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty“. He observed that “”Responsible journalism” is a standard which everyone in the media and elsewhere can recognise. The duty – interest test based on the public’s right to know, which lies at the heart of the matter, maintains the essential element of objectivity. Was there an interest or duty to publish the information and a corresponding interest or duty to receive it, having regard to its particular subject matter? This provides the context within which, in any given case, the issue will be assessed.”
Lord Scott reminded himself of the 19th century case which was the basis of this defence (Toogood v Spyrings), where Baron Parke observed on the subject of privileged communications: “if fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them in any narrow limits.”
He considered that the term “responsible journalism” had been “usefully coined as succinct summary – but only a summary – of the circumstances in which a defamatory article in a newspaper can claim … protection“.
He considered that “there is … information the public interest of which is real and unmistakeable. In relation to information of that character it makes sense to speak of the newspapers having a “duty” to publish. They and their reporters should, of course, take such steps as are practicable to find the truth of what is reported. Fairness to those whose names appear in the newspapers may require, if it is practicable, an opportunity to comment being given to them and/or an opportunity to have a response published by the newspaper. These are all circumstances the weight of which in assessing whether a report should be protected by qualified privilege will vary from case to case.”
Baroness Hale made her views clear from the outset:
“It should now be entirely clear that the Reynolds Defence is a “different jurisprudential creature” from the law of privilege, although it is a natural development of that law. It springs from the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information. It is not helpful to analyse the particular case in terms of a specific duty and a specific right to know. That can, as experience since Reynolds has shown, very easily lead to a narrow and rigid approach which defeats its object. In truth, it is a defence of publication in the public interest.”
Baroness Hale then made it clear that there would be both appropriate safeguards and specific boundaries to the defence:
“This does not mean a free for all to publish without being damned. The public only have a right to be told if two conditions are fulfilled. First, there must be a real public interest in communicating and receiving the information …
Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think were reliable, that the publisher himself believed the information to be true and that he had done what he could to check it.”