Freedom of expression under threat again?

Since 2000, most libel text books and legal guides for journalists have included a section headed “The Reynolds Defence”. This is commonly understood to provide the media with a “qualified privilege” to publish information from reliable sources in the public interest, even if it proves to be defamatory and untrue.

This defence stems from a claim by Albert Reynolds – the former Irish Taoiseach – against the publisher of The Sunday Times over allegations connected to his resignation in 1994. The case reached the House of Lords in 1999. Where allegations are untrue and defamatory, the law looks for a legal, moral or social duty to publish the material and a corresponding duty or interest in receiving it as an alternative defence. This was historically a relatively high threshold for investigative journalism to overcome where allegations had been published to a wide audience.

A more fluid approach to the defence in Reynolds was therefore welcomed by the media. Lord Nicholls identified 10 criteria to take into account when considering the media’s duty to report allegations to the public. His approach was still founded on the duty and interest, but in a manner that took account of the media’s role in publishing material in the public interest to the public at large, acting as the public’s “bloodhound as well as a watchdog”.

A number of subsequent cases developed the Reynolds defence, providing further flexibility to the strict “duty and interest” doctrine in media cases. For example, the courts developed the Reynolds concept of “responsible journalism” and further recognised the important role of the media in reporting both sides of a dispute in a neutral way. Even what a journalist intended to write, as opposed to the actual defamatory meaning of an article, was also taken into account by the courts (the Privy Council) when considering whether or not the modified defence of qualified privilege ought to apply. So far, so good.

In Reynolds, however, the House of Lords did not, in terms, create a new defence for the media (although it is often described as such).

Last month witnessed two occasions, in different legal guises, which could indicate a judicial return to a more restrictive approach to this defence.

First, Mr Justice Eady in Jameel & Ors v The Wall Street Journal Europe SPRL described references to a distinct Reynolds-based defence as imprecise, to the extent that they could chill the media’s freedom of expression for uncertainty in the law.

He found that the law did not “afford journalists a special privilege or a degree of protection which is not available to other citizens”. He reaffirmed the view that Reynolds merely reflects the adaptability of the classical duty and interest test. The “touchstone” of the law remains the social or moral duty on the media to publish in the first place. Lord Nicholls’ criteria are to be addressed en route and cannot supplant that primary question.

Second, Lord Hutton in his recent report into the death of Dr David Kelly also adopted a similarly restrictive approach to the law. He said that the media’s right to publish material in the public interest was curtailed to the extent that “false accusations of fact impugning the integrity of others, including politicians, should not be made by the media”. He also incorrectly stated that the law of defamation does not recognise a distinction between reporting the views of a journalistic source and adopting them. This is a distinction, however, raised by Lord Nicholls as the ninth of his 10 factors relevant to qualified privilege. Although he appended extracts from the Reynolds judgment in the House of Lords to his report, many, not least Greg Dyke, the former director general of the BBC, have criticised Lord Hutton’s approach as failing to take proper account of the media’s rights to freedom of expression under Article 10 and the development of the defence of qualified privilege post-Reynolds.

The role of the media – in particular its freedom to criticise the Government in a responsible way relying on credible sources, even if allegations turn out to be untrue – is central to a free society.

While the findings of Lord Hutton and this recent judgment from Justice Eady should not deter the media from their investigative work, such developments will not go unnoticed by those responsible for legalling their copy.

Benjamin Beabey is a solicitor in the media team at Farrer & Co

Benjamin Beabey

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