Reynolds v Times Newspapers Ltd [1999] UKHL 45

Reynolds v Times Newspapers Ltd and Others [1999] UKHL 45; [2001] 2 AC 127

Defamation, qualified privilege and responsible reporting on matters of public interest.

Facts

Albert Reynolds resigned as Taoiseach, the Irish prime minister, during a political crisis in November 1994. The British mainland edition of the Sunday Times published an article alleging that he had dishonestly misled the Dáil and his coalition colleagues. Its treatment differed from the longer account in the newspaper’s Irish edition.

Reynolds sued the publisher, editor and journalist for libel. At the first trial, the jury rejected the defence that the allegation was true and found no malice. It awarded no damages, for which the judge substituted one penny. The judge also rejected the defence of qualified privilege.

The Court of Appeal ordered a new trial because of misdirections, but held that the defendants could not rely on qualified privilege at that retrial. The defendants appealed to the House of Lords against that ruling.

Issue

Should political reporting enjoy a general qualified privilege, so that a defamatory factual allegation published in good faith would be protected unless the claimant proved malice? Alternatively, could this article qualify for protection under the existing, circumstance-sensitive common law?

Decision

The House unanimously rejected a general category of privilege for political information. By a majority of three to two, it dismissed the defendants’ appeal. Lord Nicholls, Lord Cooke and Lord Hobhouse held that this article was not privileged and that the defendants should not reopen that issue at the retrial.

Lord Steyn and Lord Hope would have allowed the appeal so that privilege could be reconsidered at the new trial under the approach explained by the House. They did not endorse an automatic privilege for political reporting.

Reasoning

Public importance did not automatically protect a publication

The House recognised the press’s essential role in informing the public and scrutinising political power. It also recognised reputation as important both to the individual and to public life. Requiring a politician to prove malice in every case would provide inadequate protection, particularly where the journalist’s sources remained confidential.

Political subject matter alone therefore could not determine whether a publication was privileged. Nor was there a sound reason to single it out from other matters of serious public concern. The court had to examine the particular information and the circumstances in which it was published.

The duty–interest test and responsible journalism

The existing common law asked whether the publisher had a duty or interest in communicating the information and whether the recipients had a corresponding interest in receiving it. For publication to the public at large, this required an assessment of whether the particular publication deserved protection in the public interest.

Lord Nicholls treated the circumstances as part of that assessment, rather than as a separate third test. His approach allowed protection for responsible journalism even where a factual allegation could not be proved true. It did not make the publisher’s honest belief sufficient by itself.

He identified ten illustrative considerations:

1. The seriousness of the allegation.
2. The nature of the information and its public importance.
3. The source of the information.
4. The steps taken to verify it.
5. Its status, including any previous investigation.
6. The urgency of publication.
7. Whether comment was sought from the person concerned.
8. Whether the article included the substance of that person’s explanation.
9. The article’s tone, including whether it raised questions or asserted allegations as fact.
10. The circumstances and timing of publication.

These were not exhaustive or rigid requirements. Their importance would vary with the case. Journalists should not be judged with hindsight, and the court should give substantial weight to freedom of expression, particularly in political discussion. Disputed primary facts were for the jury where there was one; whether those facts established privilege was for the judge.

Why this article failed

Reynolds’s resignation was plainly a matter of public concern. However, the article made serious allegations of dishonesty as statements of fact while omitting the explanation he had already given in the Dáil. The journalist’s disbelief of that explanation did not justify withholding it from readers, who were left with the impression that Reynolds had offered none.

For the majority, that omission and the circumstances of publication prevented the newspaper from establishing privilege. The absence of malice did not cure the problem: malice became relevant only after a privileged occasion had been established. The decision thus distinguished the public importance of a story from the quality and fairness of the particular reporting.

Source: Full House of Lords judgment, 28 October 1999.