When in 2001 the new form of qualified privilege defence for the media was created in Reynolds v Times Newspapers, many thought that the millions of pounds in legal fees invested by the print media in making our libel laws more media friendly had finally borne fruit. In fact, most Reynolds defences have failed, and the judgment of Mr Justice Eady of 20 January 2004 in Jameel indicates that the courts will maintain the objective and restrictive bounds of the defence.
The ambit of this defence is important since the effect of Reynolds is to take from the claimant the key Article 8 right to establish the falsity of allegations. As Lord Nicholls observed in Reynolds, alongside the public interest in freedom of speech goes a corresponding interest in not being misinformed by the media on important factual issues.
The Reynolds defence takes the spotlight from the accuracy of the factual assertion made by the journalist, and directs it instead at whether, in all the circumstances, the publication of the defamatory material was “responsible”. Lord Nicholls in Reynolds set out ten non-exhaustive criteria against which journalism resulting in defamatory allegations should be judged, and Mr Justice Eady addressed (as is now the usual practice) all of those criteria in his clear and helpful judgment in the Jameel case.
Points of interest in the judgment include the judge’s interpretation of the first of Lord Nicholls’s criteria (concerning the gravity of the allegations) as being one where the measure of gravity placed a correspondingly greater obligation on the part of the journalist to exercise “greater responsibility … before adopting or repeating any such charges. So too, the greater the need to give an opportunity to the subject of the allegations for him to comment and to check, where necessary, for accuracy. Moreover, the public too would be entitled to greater accuracy in proportion to the increasing gravity of the defamatory allegations that are made.”
The judge also qualified the often expressed judicial view that news is a “perishable commodity”, saying that “claims of urgency on the part of journalists need to be carefully scrutinised and measured against the true entitlement of the general public … to be kept up to date with accurate and responsibly researched information.”
The judge made an interesting observation on the issue of sources: “It is important to recognise, however, that there is no compulsion to publish whatever a source may state. The reliability of the source may be a factor to take into account when deciding whether or not the information was such that the public have a right to receive it. Needless to say, even if one has an entirely impeccable source of direct knowledge, it does not follow that qualified privilege will attach to a repetition of anything he may say.”
The judge expressly referred to the previous leading authority on qualified privilege for the media (Blackshaw v Lord), observing that it “made clear that the public will generally, where privilege is to be upheld, have an interest in receiving factual information rather than speculation, hunches or guesswork in circumstances where blame or suspicion is being publicly attributed for some form of wrong doing.” It seems then that such defences will rarely succeed, and then only when the court is shown evidence of the highest journalistic standards. Since the success of the defence means that the claimant’s right not to have false allegations published about him in the press has been lost, it is right that high standards on the part of the media should be required.