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Free 2.1 Law Essay

'Reynolds v Times Newspapers (1999) transformed the law of qualified privilege.' DISCUSS

Qualified privilege provides a conditional defence to a claim in defamation, giving protection only if a statement is made without malice.

The Defamation Act 1986 provides a statutory qualified privilege for any material that is of public concern and for the public benefit. The common law also protects against complaints or information passed under a public or private legal, social or moral duty to another person with a duty to receive, or the relevant authority.

Examples of situations attracting this privilege include giving employment references, and reporting complaints to the police about suspected crimes.

No public interest defence exists for qualified privilege. In considering political information the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public, which will depend on quality and subject matter.

The historical position

Prior to Reynolds, the leading authority on qualified privilege for the media was Blackshaw v Lord . In that case, the Court of Appeal rejected a claim to generic protection for a widely stated category: 'fair information on a matter of public interest'. It held that a claim to privilege must be precisely focused. Whether protection exists would depend upon the circumstances, including the nature of the matter published and its source or status. This position created unpredictability and uncertainty.

Reynolds

In the Reynolds case arose following an article published by the Sunday Times regarding the former Irish Taoisearch (prime minister) Mr Albert Reynolds, who resigned in the midst of a political crisis in 1994. The article asserted that Mr Reynolds had deliberately misled the Dail (Irish Parliament) and that he had suppressed important information about his colleague, Harold Whelehan. It was alleged that this concealment was to assist Mr Whelehan in his bid to become President of the High Court. It was suggested by the Sunday Times that, had the facts not been concealed, Mr Whelehan's appointment would have been rendered unconscionable. Mr Reynolds brought a claim for defamation against the newspaper. The matter was heard before a jury, which found that the newspaper was unable to prove the truth of its allegations.

The case was however particularly interesting, because the jury awarded no damages to Mr Reynolds. As a result, both parties appealed their case to the Court of Appeal. The Court of Appeal ordered a retrial, and the times sought permission to use the defence of qualified privilege. The Court of Appeal refused this, but this was allowed on appeal to the House of Lords.

In considering the appeal, it was necessary for their Lordships to consider whether to create a new category of occasion when privilege would derive from the subject matter alone, namely political information. The newspaper argued that malice apart, publication of political information should be privileged regardless of the status and source of the material and the circumstances of the publication. It submitted that the contrary view requires the court to assess the public interest value of a publication, taking these matters into account, and that such an approach would involve an unpredictable outcome - and would effectively put the judge in an editor's position. It is clearly inappropriate for the court to hold a role as censor or licensing body.

Lord Nicholls of Birkenhead recognised the "high importance of freedom to impart and receive information and ideas". He noted that the "press discharges vital functions as a bloodhound as well as a watchdog".

In his judgement, Lord Nicholls declined to develop political information as a new subject matter category of qualified privilege. He concluded that the established common law approach to misstatements of fact remained sound, and political information should not be developed as a new subject matter category as sought by the newspaper. In his opinion, the elasticity of the common law principles enable the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.

His Lordship however stated that "the court should be slow to conclude that a publication was not in the public interest, and therefore, the public had no right to know". This was of greatest importance when the information was in the field of political discussion.

He then went on in his judgement to provide 10 illustrations of matters that the court should take into account, as follow:

1. The seriousness of the allegation.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern
3. The source of the information.
4. The steps taken to verify the information.
5. The status of the information, for example whether it had already been subject of an investigation.
6. The urgency of the matter. (Commenting that news is often a perishable commodity.)
7. Whether comment was sought from the plaintiff.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article.
10. The circumstances of the publication, including the timing.

This test has become known as "the Reynolds test". The test balances the public interest in the freedom of speech against the public's interest in not being misinformed by the media on important factual issues. The test effectively directs the court to focus on whether, in all the circumstances, the publication of the defamatory material was "responsible", rather than simply whether the factual assertion was accurate.

In Reynolds, the House of Lords concluded that the article was of public importance, and as a result attracted qualified privilege. However, because the article did not contain a response by the Claimant concerning the allegations made against him, the House of Lords held that Mr Reynolds had been treated unfairly.

The impact of Reynolds
Initially, many thought that Reynolds was a significant breakthrough for the media. However, since the new form of qualified privilege was established in 2001, most Reynolds defences have failed. By way of example, the Reynolds defence was applied in Loutchansky v Times Newspapers . The newspaper had linked Mr Loutchansky, a Russian businessman, with an investigation into money laundering. The times failed to seek Mr Loutchansky's comments, and the court was not persuaded that there was any urgency in the matter. The case therefore failed the Reynolds test.

In the more recent decision of Jameel v Wall Street Journal Europe the Court of Appeal refused to relax the test for Reynolds privilege. Mr Justice Eady (as has become the usual practice) addressed the 10 Reynolds points. When considering the seriousness of allegations, he interpreted this as being a duty 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 allegations; and the greater the need to provide an opportunity to the claimant to comment, and to check for accuracy. He went onto state that the public would be entitled to greater accuracy in proportion to the increasing gravity of the defamatory allegations made.

Mr Justice Eady also commented on the expression "perishable commodity", stating 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".

Mr Justice Eady formulated the test as "whether the media had an obligation to publish and whether the public had a need to have the information contained within it in the sense that it would be wrong to deprive the public of it - referred to as the duty v interest test. The Court of Appeal found that the Reynolds test was not satisfied, and declined to interfere with the Reynolds test. The court held that the press has a duty to keep the public informed of matters that are genuinely of public interest, but found that in this case there was no duty to publish the article, and hence no defence of qualified privilege existed.

Conclusion

The Jameel case confirms that qualified privilege is not a catch all defence for the press, and that caution is required. Therefore, whilst Reynolds did establish a new form of qualified privilege, this has been applied restrictively by the courts in subsequent decisions and the test has not had the significant impact on media law that was initially anticipated.

 

Bibliography

Rogers, WVH - Winfield & Jolowicz on Tort, 16th Edition. (2002) Thomson Sweet & Maxwell
Lunney, M and Oliphant, K - Tort Law Text and Materials 2nd edition (2003) Oxford
Blackshaw v. Lord [1984] 1 Q.B. 1
Jameel v Wall Street Journal Europe SPRL [2005] EWCA 74
Loutchansky v Times Newspapers (No 2) [2001] 3WLR 404
Reynolds v Times Newspapers [2001] 2AC 127 (HL)

Defamation Act 1996

Defamation and qualified privilege - Daniel Doherty downloaded on 27th July 2005 from www.lawdit.co.uk

Defamation and qualified privilege - Galloway v Telegraph Group PLC - Mary Luchham downloaded on 27 July 2005 from www.spr-consilio.com/arttort15.htm

Early Warning: The courts maintain a narrow interpretation of the media privilege defence: Jameel v Wall Street Journal, Jonathan Coad, 23.1.2004 www.simkins.co.uk

Qualified privilege under the Defamation Act 1996 downloaded on 27th July 2005 from www.yourrights.org.uk

Qualified privilege and the setting aside of a jury verdict in an action for defamation - Herbert Smith downloaded from www.legal500.com on 27th July 2005

 

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