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Bulletins Story:
REYNOLDS DEFENCE IS REVIEWED BY THE HOUSE OF LORDS: JAMEEL v
WALL STREET JOURNAL
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Date:
12.10.2006
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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."
Jonathan Coad
Defamation & Privacy
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