Defamation

Lord Nicholls in the case of Reynolds v Times Newspaper placed much emphasis on protection of
reputation as a matter of public interest. He asserted that:
it should not be supposed that the 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 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 reputation of others.
The implied reference to Convention rights in this passage is clear and it illustrates that the human
rights era is not necessarily or at least not uniquely an individualistic era. Critically examine the crux
of the appeal in Reynolds in identifying the restrictions which are fairly and reasonably necessary for
the protection of reputation.
Answer
Defamation seeks to balance the seemingly irreconcilable issues of protecting ones reputation with
the rights of others to say what they want. A satisfactory balance is vital so that unfounded claims do
not ruin lives while allowing a free investigative press to flourish. Defamation is defined as the
publication of a statement which reflects a persons reputation and tends to lower him in the
estimation of right thinking members of society. It seems questionable to put reputation on such a
level particularly at the expense of anothers free speech, however, it is crucial to note that
reputations are important assets and the justification is that the permanence will cause more
damage.
To receive the torts protection, certain requirements need to be fulfilled to ensure that there is a
sufficient nexus existing between the statement and the claimant to warrant restricting the makers
free speech. Firstly, the statement must be defamatory. This is a question of fact to be decided by
the jury. The test was laid down in Sim v Strecth by Lord Atkin where the test is to be used in order
to determine whether the words are defamatory or not is the right-thinking members of society
test. Intention here is irrelevant. (Cassidy v Daily Mirror Newspaper) Protection also extends to
situations where the ordinary words themselves are not defamatory but they contain an innuendo
which is damaging. (Tolley v Fry & Sons) Secondly, the statement must also refer to the claimant,
though it is not necessary for the claimant to be identified by his or her name or any indicator.
(Morgan v Odham) Thirdly, the words must be published or communicated to a third party for it to
be actionable as defamation protects reputation and not feelings.
Qualified privilege is a limited defence and will be lost if it was made maliciously. In Horrocks v Lowe,
the defendant was protected by the privilege unless a dominant and improper motive is proven.
Traditionally, qualified privilege at common law arises where there is a reciprocal duty and interest
between the defamer and the person to whom the statement is published. The rationale for this is
for common convenience and the welfare of the society where one is free to communicate without
fear of litigation. This is illustrated in job applications such as in Spring v Guardian Assurance where
there was a legal duty to provide reference from a former employer. The leading case in common
law privilege is now the House of Lords decision in Reynolds v Times Newspaper in which the
relationship between QP and the press was called into question.
In Reynolds, the former Prime Minister of the Republic of Ireland, Albert Reynolds brought an action
against The Times over an article which he claimed implied that he had deliberately misled the Irish
Parliament and his cabinet colleagues during a political crisis in Ireland in 1994. He succeeded at first
instance, but the jury awarded him one penny of damages. He appealed. The Times also appealed
claiming that they were protected by QP. The Court of Appeal set aside the jurys verdict and
ordered a retrial, but held that the newspaper was not covered by QP. The House of Lords rejected
the appeal by The Times where it was held that there was no special head of QP for the media based
on the public interest in political information and discussion. On the basis, the ordinary
duty/interest test applies. However, the House viewed that the test was flexible enough to include
consideration of diverse factors such as the nature, status and source of the material published and
the circumstances of the publication.
Applying this test, the majority agreed that the article did not contain information which the public
had the right to know. The case marked a clear recognition by the House of Lords of the importance
of Article 10 ECHR and the need to balance the countervailing interests of reputation and freedom of
speech. At the same time, it also gives the press some hope that in the right circumstances, the press
could rely on QP when discussing political matters. Lord Nicholls identified several factors to be
taken into account such as the seriousness of the allegation, the nature of the information (whether
it is a matter of public concern), its source, what steps taken to verify the information, status of the
information (reliability of the report), urgency of matter, whether comment is sought form the
claimant, whether the gist of the claimants side of story has been told, tone of the article and the
general circumstances and timing of the publication. Clearly, such a flexible approach leaves the
courts free to weigh up the competing interests of freedom of expression and reputation on the
facts of each case. Yet such flexibility brings also uncertainty.
While Lord Nicholls asserted that the courts should be slow to find that publication is not in the
public interest, particularly in relation to political discussion, it remained for the courts to determine
whether how his Lordships ten guidelines would be applied. In fact, Lord Lester commented on
Reynolds stating that the important matter in issue is for the media to develop and monitor their
own codes of responsible journalism so that they are able to take advantage of the new
opportunities in Reynolds. The temptation is now for the media to follow the easy line of least
resistance and to censor themselves rather than to meet the challenge of Reynolds that is to
maintain a high professional standard and ethical standards. Such an avoidance would not be in the
best interest of free expression and informed public.
In the post-Reynolds case of Loutchansky v Times Newspaper, stressed that the Reynolds test was
one of responsible journalism. If the newspaper could satisfy the Reynolds criteria and demonstrate
that it had acted responsibly, the CA noted 3 maters of individual and public concern which would be
predominant in the mind of the courts. Firstly, if QP was allowed, then to all intent and purposes,
the publisher would have a complete defence and the claimant would be denied a remedy.
Secondly, setting the standard of journalistic responsibility too low would inevitably encourage too
great readiness to publish defamatory matters. Thirdly, setting too high would deter newspapers
from their proper function of keeping the public informed.
However, more recently, in Jameel v Wall Street Journal Europe, despite the guidance, the House of
Lords found out that the lower courts were interpreting the Reynolds defence in an unduly
restrictive manner and that it is necessary to restate its principles. The CA had rejected the defence
of QP due to the failure of the newspaper to delay publication to allow the claimant to comment.
The HL stressed that the ten factors are not hurdles but merely pointers towards the correct
approach to adopt. Their Lordships identified to questions to be addressed in cases of media QP
namely that the subject matter of the article, taken in context and as a whole, was in the public
interest and that the publication met the objective standard of responsible journalism. It is not
necessary to show that the editor would be open to criticism for not publishing where if that is the
case, the claim to privilege is beyond dispute.
In Jameel, the article as a whole dealing with the issues of the funding of international terrorism in
the wake of 9/11 attacks, raised a matter of public interest and that the Wall Street Journal had
acted responsibly in taking reasonable steps to verify the facts relied upon. Baroness Hale
commented that there is a compelling need for more serious journalism and that the defamation
law should encourage rather than discourage it. This was confirmed by the Privy Council in Seage v
Harper, that the Reynolds test (as interpreted in Jameel) represented a liberalisation of traditional
rules and that it would be generally easier to satisfy than the traditional test for QP. The PC went
further and found that there were no valid reasons why it should not be extended to publications
made by any person who publishes material of public interest in any medium, so long the conditions
as being applicable to responsible journalism is satisfied.
The various factors under Reynolds are imprecise and fact-sensitive, so it is unlikely that the decision
in one case will provide an easy solution to the next one and the decided cases tend to be one-off
illustrations of the application of the principles. Although cases decided before Jameel are not
necessarily wrong, they must be read bearing in mind that that defence did involve emphasis on the
propositions that the defence was not to be closely restricted and failure by the defendant on one
factor was not necessarily fatal to his case. Hence, in Jameel, the failure to hold back the story for 24
hours to see if the human claimant could be contacted was not fatal.
The courts have recognised the cardinal importance of press freedom and the need for any
restrictions on that freedom to be proportionate and no more than necessary to promote the
legitimate object of the restriction. As seen in Loutchansky and Jameel, the courts will still seek to
ensure that the standard of responsible journalism is maintained and will continue to be alert to any
suggestion that they have given the green light to a general media head of QP. The Reynolds criteria
will be monitored and it should be recalled that whilst newspapers have been successful like in
Jameel, The Times failed to satisfy QP in Loutchansky.
This protects stronger protection when highlighting potential wrongdoing. Employing responsible
methods such as verification and including a riposte in the story, it avoids publication of
unsubstantiated claims and protects reputations by pre-empting litigation. However, while the
defences affords suitable theoretical protection of free speech, particularly the adaption of QP, the
relative ease in satisfying the requirements of defamation means that the threat of litigation
restricts speech. Indeed, the cost means that the prospect of financial ruin is detrimental to both
parties where damaged reputations go unchallenged and damning information of public importance
left unpublished.