1

Oliver Damian, UTS Student No 02110423

77722 Media Law (PG), Spring 2006

Responsible reporting of facts to the world at large – the

development of Reynolds Public Interest Defence

Introduction
The practice of journalism straddles the balance between two
conflicting human rights – freedom of expression and the protection of
reputation.

The public has the right to know certain facts of interest to them, and
journalists have the duty of publishing these facts without undue fear of being
sued should they get their facts wrong.

At the same time, there is a need to protect the reputation of

individuals. Most of our decisions and choices as members of the public are
based on our assessment of the reputation of particular individuals we work
for, hire, vote, and put our trust in.

How these two competing interests should be balanced by the courts

was discussed in depth and enunciated by Lord Nicholls of Birkenhead in his
leading judgment in the Reynolds case1 which gave birth to what has since
been referred to as the Reynolds privilege.

Recently Reynolds privilege has been revisited and its application

clarified by the House Lords in the case of Jameel2 with Lord Hoffmann
proposing that Reynolds privilege should me more accurately referred to as
the Reynolds Public Interest Defence.

The Reynolds Case

The case involved the publication of an article in Britain alleging
dishonesty on the part of Mr Reynolds who was prime minister of Ireland in
1994. The alleged dishonesty related to withholding information relating to the
conduct of one of his ministers whose appointment to the judiciary he was
endorsing. This together with a series of other events eventually led to the

1
Reynolds v Times Newspapers Ltd [2001] 2 AC at 190 – 206.
2
Jameel and others v Wall Street Journal Europe Sprl [2006] UKHL 44.

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resignation of Mr Reynolds, and the fall of the ruling coalition. The events
were relevant to Britain since the Mr Reynolds was very much involved in the
peace process with Northern Ireland. The published article was subsequently
proven to be false. The issue on appeal heard by the House Lords, being an
issue of public importance, was if the publication of this false article was
protected by qualified privilege. In handing out his judgment Lord Nicholls
gave an in depth analysis of the common law as it applies to this, as
discussed below.

Truth and defamation

The common law has historically accorded protection to reputation in
its law on defamation. An action in defamation arises with the publication of a
matter construed to be adverse to a person’s reputation. The action has the
peculiar characteristic of the claimant neither having to prove that the
defendant was at fault nor that the published matter was false. Furthermore, it
is actionable per se, so once the published matter is proven to be defamatory,
general damage is presumed, the claimant does not have to prove special
damage. As such, it is said to have a “chilling effect” on the freedom of
expression.

Truth is a complete defence to defamation. The defendant establishes

the defence of justification if the substantial truth of the published matter is
proven.

Because of defamation’s chilling effect, the common law has

recognised some exceptions that allow journalists to report freely without the
overarching fear of being sued should they be mistaken or misinformed. It can
be said that in these instances the protection of reputation gives way to the
greater public interest in the freedom of expression.

Honest comment on matters of public interest

One established exception available to everyone is the defence of
comment on a matter of public interest. It has been said as early as 1863 that
“it is the right of all the Queen’s subjects to discuss public matters”.3 Although,

3
Note 1 at 193 Lord Nicholls citing Campbell v Spottiswoode (1863) 3 B&S 769, 779 per
Crompton J

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it has not been defined, public interest is said to be wide in scope. Lord
Denning has said that it is not to be confined within narrow limits and that:

“Whenever a matter is such as to affect people at large, so that they may

be legitimately interested in, or concerned at, what is going on; or what
may happen to them or others; then it is a matter of public interest on
which everyone is entitled to make a fair comment”4
That the comment must be fair has traditionally been held as a
necessary ingredient of the defence. However, this objective standard loosely
defined as comments that could be made by a fair-minded person has been
given so much judicial latitude to the point of being meaningless. The true test
is now said to be if the comment was based on an honest belief held by the
person who made it and not actuated by malice.

False Defamatory Statements of Fact - Privileges

The defence described above applies to honest comments made and
does not cover defamatory statements of fact. However, there are
circumstances when the “common convenience and welfare of society”5
necessitates the candid communication of facts. There are situations where it
“becomes right in the interest of society”6 that a person should tell certain
facts to another.

There are situations where the recipient has an interest in knowing the
honestly held beliefs in the statements of fact even if those statements are
defamatory and cannot be proven as true by the maker. When this interest
outweighs the importance of protecting reputation, the situation is considered
as privileged.

At times this privilege is absolute. For example if it relates to

statements about parliamentary and judiciary proceedings. More often, the
privilege is qualified, and can be defeated if the statement was actuated by
malice, or if the maker did not believe the truth of the statement or was
indifferent to its truth.

4
Note 1 at 193 Lord Nicholls citing London Artists Ltd v Littler [1969] 2 QB 375, 391 per
Denning MR
5
Note 1 at 193 Lord Nicholls citing Toogood v Spyring (1834) 1 CM & R 181, 193 per Parke B
6
Note 1 at 193 -194 Lord Nicholls citing Davies v Snead (1870) LR 5 QB 608, 611 per
Blackburn J

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The list of situations that attract this privilege is still open with the
courts adding more situations as they arose. The principle in determining
whether a situation is privileged or not being that both the recipient and the
maker must have an interest or a duty in having the statement made:

“a privileged occasion is…an occasion where the person who makes a

communication has an interest or a duty, legal, social, or moral, to make
it to the person to whom it is made, and the person to whom it is so made
has a corresponding interest or duty to receive it. This reciprocity is
essential.”7
This has become known as the duty-interest test.
Although regard has to be made on the duty and interest between the
maker and recipient, Lord Nicholls stressed that the essence of the defence
lies in the “public interest for a particular recipient to receive frank and
uninhibited communication of particular information from a particular source…
Thus the court has to assess whether, in the public interest, the publication
should be protected in the absence of malice”8 He also stressed that in
determining whether the situation is privileged, the court must have regard to
all circumstances, and they must viewed with today’s eyes. “The requirements
at the close of the twentieth century may not be the same as those of earlier
centuries or earlier decades of this century”.9

Publishing to the world at large

Usually the privileged situations are where publication is to a limited
group of people who have interest in receiving the information. Publication to
a wider audience who does not have the reciprocal interest to receive is not
taken as privileged.

However, the common law has recognised that there are situations
where in the public interest publication to the world at large should be
privileged. This was usually applied in cases involving newspapers reporting
on the activities of certain bodies which the courts held the public has the right
to know, for example debates in parliament and judicial proceedings. In these
situations, privilege derives from the subject matter alone.

The Circumstantial Test

7
Note 1 at 194 Lord Nicholls citing Adam v Ward [1917] AC 309, 334 per Lord Atkinson.
8
Note 1 at 195.
9
Ibid.

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The Court of Appeal in Reynolds stressed that to determine whether a

situation attracts privilege must consider inter alia the nature, status, and
source of the material published and the circumstances of publication. In
stressing this, the court referred to this as the circumstantial test and treated it
as in addition to and separate from the duty interest test.

Lord Nicholls was quick to reverse this:

“There is no separate or additional question. These factors are to be
taken into account in determining whether the duty-interest test is
satisfied or, as I would prefer to say in a simpler and more direct way,
whether the public was entitled to know the particular information. The
duty-interest test, or the right to know test, cannot be carried out in
isolation from these factors and without regard to them. A claim to
privilege stands or falls according to whether the claim passes or fails
this test. There is no further requirement.”10

Categories of Case Attracting Privilege

Many of the categories of common law cases attracting this privilege
are now subject of statutory privilege. Yet the question of which subject
matters are to be included in the privilege remained.

In the United States, public figures cannot recover damages for

defamatory falsehoods relating to their conduct as public figures unless it is
proven that the statements were made with knowledge of their falsity or with
reckless disregard of the truth as held in Sullivan.11

In Australia, in the leading case of Lange12, the High Court held that
qualified privilege exists for the dissemination of information, opinions, and
arguments concerning government and political matters affecting the people
of Australia, if the publisher can prove reasonable conduct. The publisher’s
conduct would not be considered reasonable if no steps were taken to
reasonably verify the accuracy of the statements, or if a response was not
sought from the defamed person when it was practicable to do so.

In Reynolds, a new category of case attracting the privilege was sought

namely the subject matter of political information – this being similarly defined
as in Lange. It was argued that without malice, privilege should automatically
attach without regard to the status and source of material or circumstances of

10
Ibid at 197.
11
New York Times Co v Sullivan 376 US 254.
12
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

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publication. Otherwise, it would be left for the courts to decide the public
interest of a publication leading to unpredictable outcomes, and would put
judges in the position that should be occupied by editors.

The real question

Lord Nicholls did not accept these arguments, but instead sought to
clarify what is the real issue of the appeal.

The starting point of his arguments being the supremacy of freedom of

expression which can only be fettered if the justification to do so is compelling
and if the means employed in doing so is reasonably appropriate to the end it
seeks to achieve. The important role of the media in expressing the freedom
of information was highlighted specifically in its contemporary role in
investigative journalism.

The counterbalancing importance to the pubic of protecting reputation

was also stressed. Reputation is the basis of our decisions on “whom to
employ or work for, whom to promote, whom to do business with or to vote
for. Once besmirched by an unfounded allegation in a national newspaper, a
reputation can be damaged for ever, especially if there is no opportunity to
vindicate one’s reputation. When this happens, society as well as the
individual is the loser. For 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 if conducive to the public good”13

The real question identified by Lord Nicholls lies in identifying the

restrictions in the freedom of expression which are fairly and reasonably
necessary for the protection of reputation – in situations involving defamatory
statements of fact in particular.

Defamatory Statements of Fact – Difficulties

As already discussed, defamatory statements actuated by malice is not
protected by privilege. This makes sense as freedom of expression is not
there to enable people to make statements for the purpose of revenge and
with reckless disregard of the truth.

13
Note 1 at 201.

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In relation to comments and opinions, this is a far as protection of

reputation would go. Recipients of the statements can decide for themselves
whether to agree or disagree with the given statements.

However, it is quite different in relation to statements of fact. The

recipient has no way of knowing if the alleged fact is true or not. Furthermore,
malice is difficult to prove, particularly in situations of investigative journalism
where the journalist is entitled not to disclose the identity of the source of
information. More is needed to protect reputation, but it is not easy to find the
right solution. It was acknowledged that a lot depends on the legal tradition
and procedures in the jurisdiction as well as the power of the media.

Lord Nicholls ruled that in the case of the United Kingdom it would not
be appropriate to leave the decision to decide which publication attracts
privilege to the editors of publications because this does not constitute an
enough safeguard. The Media could not really act objectively as they have
their own commercial interests to protect.

Back to the elasticity of the common law

Lord Nicholls then went back to the common law solution – that is for
the court to decide if a publication was privileged because of its value to the
public by having have regard to all circumstances. The value to the public
would depend on the quality and subject matter of the publication. This
solution has the advantage of being elastic. The principle can be applied in an
infinite variety of individual cases. It could apply to any published information
regardless of source or origin.

The disadvantage of applying this elastic principle would be

unpredictability and uncertainty. The uncertainty of the outcome of court
decisions could chill publication. However, Lord Nicholls was quick to dispel
too much worrying over uncertainty by reminding that any practical problems
could be managed by the courts stating some guidelines. Furthermore, the
standard required by the common law does not go beyond the standard of
responsible journalism which the journalists themselves seek to uphold.

By keeping with the courts the responsibility of deciding if publication is

privileged or not, has the advantage of the court “being impartial, independent

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of government, and accustomed to deciding disputed issues of fact… No one

has suggested that some other institution would be better suited for this
task.”14

It was also argued in Reynolds that qualified privilege should attach to

political discussion automatically unless the complainant can prove that the
publisher failed to exercise reasonable care. This proposed reversal of onus
was dismissed by Lord Nicholls for the very practical reason that the publisher
would know more of the facts leading up to publication, and the burden of
proof is seldom a decisive issue in these types of cases.

Beyond political discussion

Lord Nicholls concluded that the common law approach to determining
the privileged status of false defamatory statements of fact remains sound. A
new category of political information attracting qualified privilege in any
circumstances should not be developed as this would provide inadequate
protection to reputation.

Lord Nicholls even went further than by expanding the ambit of the
privilege beyond matters involving political discussion –
“…it would be unsound in principle to distinguish political discussion from
discussion of other matters of serious public concern. The elasticity of the
common law principle enables interference with freedom of speech to be
confined to what is necessary in the circumstances of the case. This
elasticity enables the court to give appropriate weight, in today’s
conditions, to the importance of freedom of expression by the media on
15
all matters of public concern.”
Having stated earlier that to dispel uncertainty the courts could give
guidelines in matters to be taken into account regarding the circumstances
where publication can be considered to be privileged, Lord Nicholls did give
some guidelines. He was careful to point out that the list is illustrative only, not
exhaustive, and the weight given to these and any other factors will depend
on the facts of the case. The matters to be considered are as follows:16

1. 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.

14
Note 1 at 203.
15
Ibid at 204.
16
Ibid at 205.

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2. The nature of the information, and the extent to which the subject
matter is a matter of public concern.
3. The source of the information. Some informants have no direct
knowledge of events. Some have their own axes to grind, or are
being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already
been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have
information others do not possess or have disclosed. An
approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the
story.
9. The tone of the article. A newspaper can raise queries or call for
an investigation. It need not adopt allegations as statements of
fact.
10. The circumstances of the publication, including timing.
Furthermore, it was stressed that the court should above all have
particular regard to the importance of freedom of expression, and that
journalist do not act with the benefit of hindsight, matters obvious in retrospect
may be far from clear in the heat of the moment. It was then hoped that in
applying these guidelines over time “a valuable corpus of case will be built
up”.17

This defence enunciated in Lord Nicholls’s leading judgment came to

be known as the Reynolds privilege.

European Convention on Human Rights

The tension between the freedom of expression and protection of
reputation discussed in Lord Nicholls’s judgment in Reynolds is very well
captured by Article 10 of the European Convention on Human Rights18 –
1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity
17
Note 1 at 205.
18
http://www.hri.org/docs/ECHR50.html#C.Art10

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or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or the rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary. (emphasis mine)

The Convention rights have now been incorporated into English

domestic law by the enactment of the Human Rights Act 199819, section 620 of
which makes it unlawful for English courts, as a public authority, to act in a
way which is incompatible with a right stipulated in the Convention.
Moreover, under section 12 (4):
The court must have particular regard to the importance of the
Convention right to freedom of expression and, where the proceedings
relate to material which the respondent claims, or which appears to the
court, to be journalistic, literary or artistic material (or to conduct
connected with such material), to-

(a) the extent to which-

(i) the material has, or is about to, become available to
the public; or
(ii) it is, or would be, in the public interest for the material
to be published;
(b) any relevant privacy code (emphasis mine)

Reynolds privilege revisited in Jameel

The Jameel case21 concerned the publication by Wall Street Journal of
an article naming prominent Saudi Arabian businessmen whose bank
accounts it was said to be monitored by the Saudi Arabian Monetary
Authority, at the request of US law enforcement agencies, for suspected links
with terrorist organisations. The article was published five months after the
September 11, 2001 terrorist attacks in New York and Washington. The jury
found the article to be defamatory of the claimants – a Saudi Arabian
businessman and the holding company of a conglomerate named in the
article, of which he was principal director.

One of the two issues in the appeal was if Wall Street Journal was
entitled to the defence of Reynolds privilege given that arguably there were
misgivings regarding the verification of the story, and it was argued that Wall

19
1998 Chapter 42, http://www.opsi.gov.uk/acts/acts1998/19980042.htm
20
http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#6
21
Note 2 at 14-33.

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Street Journal should have waited to hear Jameel’s side of the story before
publishing the article.

Reynolds Public Interest Defence

As stated in the judgment of Lord Hoffman in Jameel,

“…Reynolds has had little impact upon the way the law is applied at first
instance. It is therefore necessary to restate the principles”.22

In applying Reynolds privilege to the case, Lord Hoffman considered

the use of the term privilege misleading. According to him, “a defence of
privilege in the usual sense is available when the defamatory statement was
published on a privileged occasion and can be defeated only by showing that
the privilege was abused.”23 The abuse of privilege is defined by the presence
of malice. As discussed above, Lord Nicholls in Reynolds refused to declare
a particular form of privilege that would apply to the situation of publishing of
political information subject only to malice as this provides inadequate
protection to reputation.

So according to Lord Hoffman, it is the published material itself and not

the occasion of publishing that is privileged. The question of a privilege being
abused by malice does not really apply, as the proper conduct of the publisher
is intrinsic in the conditions in which the published material becomes
protected. It is therefore more in the nature of a defence available to
publication rather than a privilege. In the words of Lord Hoffman:

“There is no question of the privilege being defeated by proof of malice

because the propriety of the conduct of the defendant is built into the
conditions under which the material is privileged. The burden is upon the
defendant to prove that those conditions are satisfied…It might more
appropriately be called the Reynolds public interest defence rather than
privilege.”24

How to apply the Reynolds Defence

Lord Hoffman considers Jameel as a case where the Reynolds

defence should apply. In the Reynolds case itself, the conditions required by
the defence were not met, therefore was not applied. Consequently, the

22
Ibid at 15.
23
Ibid at 17.
24
Note 2 at 18.

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House of Lords were able to discuss the conditions on general terms. Hence
Lord Nicholls’s illustrative, non-exhaustive list of ten factors to consider.

In clarifying how these and other factors should be applied, Lord

Hoffman came up with a three-step question process as follows:

(1) Is the subject matter of the published article, a matter of public

interest? – In answering this, the defamatory statement must not be
considered in isolation, but one must look at the article as a whole. It is up to
the judge to determine if the material in question is a matter of public interest.
“As has often been said, the public tends to be interested in many things
which are not of the slightest public interest and the newspapers are not often
the best judges of where the line should be drawn.”25

Following on from his re-definition of Reynolds privilege as classic case

of privilege into Reynolds public interest defence, Lord Hoffman further
generalised that the duty and interest test is taken to be satisfied when a
matter is considered to be in the public interest. He posited it as a proposition
of law, and not to be decided as a question of fact in each case. In short, in
matters of public interest, it is taken to be a given that there is a duty on the
part of the journalists to publish the information and a corresponding interest
in the public in receiving it. 26

Jameel passed this question easily as clearly it was in the interest of

the public to know if the Saudi Arabian authorities were cooperating with the
US in monitoring suspected terrorist-linked accounts. “It was a serious
contribution in measured tone to a subject of very considerable importance.”27

(2) Is the inclusion of the defamatory statement justifiable? – After

determining that the whole of the article is in the public interest, the inclusion
of the particular defamatory statements must then be justified. The statements
must be part of the story and must serve a purpose. The more serious the
allegations are, the more imperative it becomes that the defamatory
statements contribute to the public interest element in the article.

25
Note 2 at 19.
26
Ibid at 20.
27
Ibid at 19.

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Unlike the first question where the view of the editor as to whether the
publication is in the public interest need not be considered by the judge, here
allowance is to be made for editorial judgment. This echoes Lord Nicholls’s
comment in Reynolds regarding editorial decisions made in the heat of the
moment which are bereft of hindsight that a judge would have.

Jameel passed this question as well since the naming of specific

prominent businesses in the article served to show the public that the
requests made by the US authorities were serious, real, and applied to the
heart of Saudi business not just the fringes. The article would not have the
same weight had the business not been named.

(3) Were the steps taken to gather and publish the information
responsible and fair? – This is the responsible journalism part of the three-
step process. Lord Hoffman quoted Lord Nicholls in a post-Reynolds case:

“Stated shortly, the Reynolds privilege is concerned to provide a proper

degree of protection for responsible journalism when reporting matters of
public concern. Responsible journalism is the point at which a fair
balance is held between freedom of expression on matters of public
concern and the reputations of individuals. Maintenance of this standard
is in the interests of those whose reputations are involved. It can be
regarded as the price journalists pay in return for the privilege.”28

Lord Hoffman made it clear that this applies to publishing in any

medium. The important question is if the gathering and publishing of the
information was fair and responsible. There was an argument in the case that
this concept of “responsible journalism” was too vague and subjective. Lord
Hoffman quite rightly disagreed: “…the standard of responsible journalism is
as objective and no more vague than standards such as “reasonable care”
which are regularly used in other branches of law.”29

He then followed that greater certainty on what responsible journalism

entailed would come from the build up of a body of cases as noted by Lord
Nicholls in Reynolds. He also mentioned extra-statutory codes of behaviour
such as codes of practice adopted by the profession could provide valuable
guidance.

28
Note 2 at 22 Lord Hoffman quoting Bonnick v Morris [2003] 1 AC 300 at 309 per Lord
Nicholls.
29
Note 2 at 22.

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Furthermore Lord Hoffman made it clear that the non-exhaustive list of

ten factors to consider made by Lord Nicholls in Reynolds are neither rigid
tests the publication must pass nor ten hurdles it must clear. These must be
applied in a flexible manner and must have regard to practical realities.

Jameel passed this stage as well. In terms of the verification of the

story, it was verified by the US Treasury Department albeit in a ‘ritualistic’ way
characteristic of how information is obtained from US government
departments by journalist. By the contact in the US Treasury Department
saying “we are not going to make a public comment”, it was taken to mean
“we confirm our understanding that your story is correct.” In relation to the
issue of Jameel’s opportunity to comment, Lord Hoffman quite rightly
determined that this would not have affected the article much since Mr Jameel
would not know if his accounts were being monitored. The point of getting the
comment from the defamed is that he may have information that others do not
have or have not been disclosed. This is not the case in Jameel.

Conclusion

Based on the foregoing discussion, the development of the Reynolds

public interest defence is a welcome development in the law of defamation
and freedom of expression.

Before publishing allegations of fact, publishers can ask themselves

the three questions established by Lord Hoffman in Jameel and cross-check
their determination with the ten point non-exhaustive list developed by Lord
Nicholls in Reynolds. If the answer is a confident yes to the three questions,
then the publisher can confidently publish without too much worry of being
unjustifiably sued. In the eyes of the law, at least in Great Britain, they would
have done what was required of them in exercising their freedom of
expression.

The subjects of the allegations are also protected by these principles.

By the publisher following the fair and reasonable steps required by the
defence then the subject of the allegations would have the chance to have
their side of the story heard if applicable and practicable. More importantly,
they can be assured that the publisher would have taken the necessary steps

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to verify the story and convey it in an appropriate tone. If not, then the subject
would have a greater chance of succeeding in a defamation case against the
publisher. So conversely, subjects of allegations could look at the published
articles about them and ask the three Lord Hoffman questions, cross-check
against the ten point list by Lord Nicholls, and if the article fails one of the
tests, the subject could be confident that the publisher would most likely not
be able to rely on this defence, thereby strengthening their case against the
publisher should they wish to pursue them.

This level of certainty accorded by the principles behind the Reynolds

public interest defence becomes all the more important with the surge of self-
publishing to the world at large enabled by the Internet and the World Wide
Web. It would be a welcome development if other jurisdictions would adopt
the Reynolds public interest defence or its variants. In any case it would be
good for example, if the three questions and ten point list would pop – up as a
prompt before the publish button can be pressed by a blogger publishing a
blog. It would vastly improve the quality of fact reporting sprouting in the
Internet at the moment.

The Reynolds public interest defence, at least for now, has achieved a
delicate balance between the right to freedom of expression, and protection of
reputation as they relate to reporting of facts to the world at large. And the
solution looks back to the good old-fashioned tenet of responsible journalism.
It would be good to see how the lower courts apply this restatement as the
cases trickle in.

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