Bulletins Story: ANOTHER REYNOLDS DEFENCE FAILS:  RADU v HOUSTON

Date: 11.12.2007

Whatever the combined effect of the speeches of the House of Lords in Jameel v The Wall Street Journal, they undoubtedly had the effect of widening the bounds of the “responsible journalism” defence established in Reynolds v Times. They also constituted a clear signal from the most senior judges in the land to judges at first instance in particular that they should apply the Reynolds principles more flexibly.

An early test of how that judgment will be applied has come in the decision of Mr Justice Eady in a case brought by Prince Radu of Hohenzollern, who was once a professional actor and is now husband of Princess Margarita of Romania. The article at issue was published in a magazine called “Royalty Monthly” under the heading “Scandal in Romania as Princess Margarita’s husband is branded an impostor”. The first defendant was the magazine editor and the second defendant was its publisher.

The defamatory meanings which Mr Justice Eady ascribed to the article were severe. They were that the claimant’s claims to a title were false and that he was relying for them on a forged document; that he had used his rank to gain access to NATO committees, but because of his deception he was a security risk because of the consequent danger that he might be blackmailed.

The claimant vigorously denied the allegations, and the newspaper met the claim with a plea of justification (ie that the allegations are true). It also defended the article on the basis that it was protected by common interest privilege, the defence of “reportage”, and the Reynolds species of privilege. Common interest protects good faith communications between groups of individuals with a legitimate common interest. The “reportage” defence entitles the media to report neutrally public debate (usually political) without having to check the truth or otherwise of the allegations made as part of that debate. The Reynolds privilege entitles the press to publish untrue and defamatory material without either having to correct it or compensate the victim if it can persuade a court that the publication of that material was “responsible”.

After finding that the subject matter of the article as a whole (as it applied to the claimant) was of public interest, the judge concluded that the “reportage” defence must fail because the article went well beyond a mere report of a press conference. Some of the criticisms contained in the article were never made at the conference, and nor was there any account in the article of the claimant’s version of events. Applying Roberts v Gable and Charman v Orion, the judge observed that the “reportage” defence was one that should be applied in a “restricted” way.

Mr Justice Eady applied the ten stage test set out by Lord Nicholls in his speech in Reynolds. He said that the test of responsibility was whether the journalist had taken appropriate care in the gathering and publishing of the information “having all regard for the range of reasonable decisions open to an editor in the [first defendant’s position]”. His conclusion, rejecting the Reynolds defence, is enlightening:

“In the end, I have come to the conclusion that the publication of this article did not meet the criteria recently expounded in Charman. ... It is especially significant ... that such serious allegations were put into circulation without giving any opportunity for the Claimant's side of the story. (I need hardly add that this conclusion is not to be equated with saying that privilege is lost because Mr Houston tripped over one or two of Lord Nicholls' ten "matters". That would be absurd. As always, the assessment has to be "in the round".)”

The judge also concluded that the common interest privilege must fall with the Reynolds defence. He then added an interesting epilogue to his judgment. He had previously quoted the part of Lord Nicholls speech in Reynolds where Lord Nicholls stressed the importance to society as a whole of protecting reputation – a passage of such importance it warrants quoting in full:

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that 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. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others."

As Mr Justice Eady goes on to observe, again quoting Lord Nicholls:

"The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further that this would not seem to be excessive or disproportionate."

The ECHR has yet to be asked to consider whether, since the press (via both the Press Complaints Commission and National Union of Journalists Code of Conduct) sets a clear value on accuracy and accepts the need for corrections of inaccuracy, the licence granted to journalists via the Reynolds defence to publish and then not correct inaccurate material is really necessary, or even in the true interest of a democratic society. The recent ECHR decision in Pfeifer v Austria has also removed any doubt that reputation is one of those rights protected by Article 8, and so any incursion into that right also has to be justified on clear public interest grounds.

Jonathan Coad

See also:

ECHR DEFINITELY BRINGS REPUTATION WITHIN ARTICLE 8 RIGHT: PFEIFER v AUSTRIA

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