The Future of Responsible Journalism?

Posted: December 3, 2013

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The current position is that Reynolds privilege protects the publication of defamatory material where:

(i) it was in the public interest that the information should be published; and
(ii) the publisher had acted responsibly in publishing the information.

The position which is expressly stated in the Act is that Reynolds law is abolished. The new defence, headed ‘Publication on matter of public interest’ is set out in section 4(1) of the Act. It requires a defendant to show that:

(a) the statement complained of was, or was part of, a statement on a matter of public interest and:
(b) The defendant reasonably believed that publishing the statement complained of was in the public interest.

This means there is both a subjective element (what the Defendant believed was in the public interest at the time of publication); and an objective element (whether the belief was a reasonable one for the defendant to hold in all the circumstances).

The public interest has no fixed definition, though previous case law has taken guidance from the definition contained in the Press Complaints Commission Code of Practice, namely:

“The public interest includes, but is not confined to:

(i) Detecting or exposing crime or serious financial impropriety.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.”

Analysis

The subjective requirement that a defendant must have believed that publishing the statement was in the public interest did not feature in the previous law.  It is for the defendant to show what their belief was at the time, and this seems likely to mean that defendants seeking to rely on this part of the Act must produce evidence to demonstrate such belief.  This in turn could lead to a good deal of argument about whether the Defendant’s belief was genuine (in other words, whether or not publication occurred with or without malice, in the legal sense of the word). 

As to the objective element, the Explanatory Notes (which do not form part of the Act but which form a useful guide to construction) state that the intention of Parliament was to reflect the common law position.  The debates in the run up to the Bill being passed also show that it was intended that the publisher’s conduct before publication, including the steps taken to guard against publication of untrue defamatory material, will be highly material to the question of the reasonableness that publication as in the public interest.

With this in mind, we note that the original Reynolds checklist was formulated by Lord Nicholls sitting in the House of Lords only after the courts had received an extremely comprehensive summary of the case law up to that point.  In our view the courts will therefore continue to turn to the Reynolds checklist in the overwhelming majority of cases that raise the public interest defence; at least up until a new test is formulated by the courts, which may ultimately look very similar to the old one. 

The Guidance Notes to the Act anticipate this, stating that the current case law will constitute a helpful (albeit not binding) guide to interpreting how the new statutory defence should be applied. 

By way of example, therefore, the following will still be relevant to the defence:

– Seriousness: the more serious the charge, the more the public is misinformed and the company/individual harmed, if the allegation is not true. The courts have previously held that no public interest is served by the communication of misinformation.

– Sources: some informants have no direct knowledge of the events in question. Some have their own axes to grind, or are being paid for stories. The steps which have been taken to verify the quality of the source’s information will in our view continue to be a key point.

– Comment: whether comment was sought from the complainant: the complainant may have information others do not possess or have not disclosed. The law tends to treat more harshly the publisher of any article which fails to contain the gist of the complainant’s version of events.

– Tone: if an article adopts allegations as statements of fact, or takes a sensationalist approach, it is also likely to be judged less favourably than a similar article which had adopted a more balanced approach.

What this means, is that although the Act expressly says the Reynolds defence is abolished and some commentators may suggest it is therefore irrelevant, Parliament did not intend to do away with the general principles contained within the common law.  Our view is that the previous law performed a reasonable role in balancing the competing interests of protecting reputations and freedom of expression.  We are optimistic that this will remain the case as the new case law develops. Therefore, the importance of obtaining as much information as possible from journalists pre-publication, so as to understand their intentions and determine whether legal redress is appropriate, remains high.

Jon Oakley is an Associate in the reputation protection team at Michael Simkins LLP.

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