How to get the benefit of the Reynolds Defence

Some commentators have been wondering whether the protection afforded by the Reynolds defence is, in reality, illusory. The defence, rather unfairly named after the claimant (Albert Reynolds) rather than the defendant (Times Newspapers) in the libel action in which its existence was established, protects the publication of information on a subject of public interest which subsequently proves to be untrue, where the journalist was acting responsibly.

Hailed as a landmark case at the time for press freedom, there have been well-publicised decisions since where judges have held it does not apply. Late last year, the Wall Street Journal failed in its attempt to run the defence in a libel action brought by a Saudi businessman and his company about an article which suggested that there were reasonable grounds for suspecting they were involved in the funding of terrorism.

Famously, in his judgment in the Reynolds case, Lord Nicholls of Birkenhead laid down 10 nonexhaustive tests for establishing whether the journalist had met the criterion of responsible journalism.

They included:

the seriousness of the allegation – the more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true and, therefore, the greater the need for care on the part of the journalist;
the extent to which the subject matter is a matter of public concern;
the reliability and strength of the source of the information – some informants have no direct knowledge of events, some have axes to grind and some are paid for their information;
the steps taken to verify the information;
the urgency of the matter – can the story wait for another 24 hours while it is more thoroughly checked?
whether comment was sought from the claimant – he or she may have information others do not possess or have not disclosed;
whether the article contained the claimant’s side of the story;
the tone of the article – a newspaper can raise or call for an investigation, it need not adopt allegations of statements of fact.

The Wall Street Journal’s writer claimed to have five sources for his story. In evidence he admitted the first was a lead rather than a primary source and the jury decided that his other four sources had not confirmed the primary factual allegation to him.

The jury also concluded, contrary to the journalist’s evidence, that he had been asked to wait 24 hours for a comment from the other side. The judge made a number of other adverse findings against the defendants and found the Wall Street Journal’s primary argument on the importance of the story to be unpersuasive. This led him to the conclusion that the Reynolds defence did not apply in the case.

When the judgment is unpicked one can see why the defence did not succeed. There is no doubt that the principles laid down by the House of Lords in 1999 constitute a rigorous test, but if they are used as guidelines the benefit for a journalist of being able to rely on the Reynolds defence is considerable.

Rebecca Little is a member of Addleshaw Goddard’s media litigation group

Rebecca Little

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