|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
In general, a newspaper's unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.
Privilege and the facts of this case
The appellant newspaper's primary submission was that they never had the opportunity of pleading and proving a case that the 'circumstantial test' was satisfied, because this test had not been formulated until the Court of Appeal gave judgment. I am not persuaded by this line of argument. Mr. Reynolds' case before the judge was that all the circumstances had to be taken into account. He specifically relied on the gravity of the charge, the presentation of lying as an allegation of fact and not as an opinion or value judgment, the omission of Mr. Reynolds' defence as given by him in the Dail debate on Wednesday, 16 November 1994, and the difference between the versions in the mainland and Irish editions. In the exercise of its discretion the Court of Appeal decided to rule on the issue of qualified privilege, rather than leave this matter to be dealt with by the trial judge at the re-trial.
I can see no sufficient ground for interfering with that decision. Further, despite the defendants' criticisms of some of the grounds set out by the Court of Appeal at  3 W.L.R. 862, 911-912, the facts relied upon by Mr. Reynolds before the judge were clear and undisputed. A most telling criticism of the article is the failure to mention Mr. Reynolds' own explanation to the Dáil. Mr. Ruddock omitted this from the article because he rejected Mr. Reynolds' version of the events and concluded that Mr. Reynolds had been deliberately misleading. It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But this cannot be a good reason for omitting, from a hard-hitting article making serious allegations against a named individual, all mention of that person's own explanation. Particularly so, when the press offices had told Mr. Ruddock that Mr. Reynolds was not giving interviews but would be saying all he had to say in the Dáil. His statement in the Dáil was his answer to the allegations. An article omitting all reference to this statement could not be a fair and accurate report of proceedings in the Dáil. Such an article would be misleading as a report. This article is not defended as a report, but it was misleading nonetheless. By omitting Mr. Reynolds' explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any explanation already given. An article which fails to do so faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true.
Was the information in the 'Sunday Times' article information the public was entitled to know? The subject matter was undoubtedly of public concern in this country. However, these serious allegations by the newspaper, presented as statements of fact but shorn of all mention of Mr. Reynolds' considered explanation, were not information the public had a right to know. I agree with the Court of Appeal this was not a publication which should in the public interest be protected by privilege in the absence of proof of malice. The further facts the defendants wish to assert and prove at the retrial would make no difference, either on this point or overall. I would dismiss this appeal.
I gratefully adopt the account of the background given by Lord Bingham of Cornhill, C.J., in sections I, II, and III of the judgment of the Court of Appeal (reported at  3 W.L.R. 862, 868H-876F), as well as the summary given by my noble and learned friend Lord Nicholls of Birkenhead. I therefore turn directly to the central issues.
The New Landscape
Important issues regarding the reconciliation of the colliding right of free speech and the right to reputation need to be considered in the light of the new legal landscape. In what was at the time regarded as a classic direction on fair comment to the jury Diplock J. in Silkin v. Beaverbrook Newspapers Ltd.  1. W.L.R. 743, 746 observed:
The present case involves a defamatory and factually false statement which the newspaper honestly believed to be true. If the observation of Diplock J. is taken not only as the starting point but as reflecting an absolute rule, there would be no room for any qualified privilege in respect of political speech. But the law has not stood still. In Attorney-General v. Guardian Newspapers Ltd. (No. 2)  1 A.C. 109, 283-4, Lord Goff of Chieveley observed that there was in principle no difference between article 10 of the European Convention of Human Rights and the English law of confidence. Article 10 is in the following terms:
In Derbyshire County Council v. Times Newspaper Ltd.  A.C. 534, 551G, Lord Keith of Kinkel, speaking for a unanimous House, endorsed in a carefully considered passage Lord Goff's observations in the context of article 10 of the Convention and the law of defamation.
It is worth considering why Lord Goff and Lord Keith could so confidently assert that the law of England and article 10 of the Convention is the same. In my judgment the reasons are twofold. First, there is the principle of liberty. Whatever is not specifically forbidden by law individuals and their enterprises are free to do: see Lord Goff, at p. 283G, where he stated that in England "everybody is free to do anything, subject only to the provisions of the law." By contrast the executive and judicial branches of government may only do what the law specifically permits. Secondly, there is a constitutional right to freedom of expression in England: see Broome v. Cassell & Co. Ltd.  A.C. 1027, 1133 A-B per Lord Kilbrandon. By categorising this basic and fundamental right as a constitutional right its higher normative force is emphasised. These are perhaps some of the considerations which enabled Lord Goff in 1988 and Lord Keith in 1993 to hold that article 10 of the Convention and the English law on the point are in material respects the same. Now the Human Rights Act 1998, which will corporate the Convention into our legal order, is on the statute book. And the government has announced that it will come into force on 2 October 2000. The constitutional dimension of freedom of expression is reinforced. This is the backcloth against which the present appeal must be considered. It is common ground that in considering the issues before the House, and the development of English law, the House can and should act on the reality that the Human Rights Act 1998 will soon be in force.
The new landscape is of great importance inasmuch as it provides the taxonomy against which the question before the House must be considered. The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation.
The issues to decide are as follows: (1) Is there a generic qualified privilege extending to publication by a newspaper to the public at large of information including assertions of fact concerning government and political matters which affect the people of the United Kingdom? If there is such a generic qualified privilege, the appeal must succeed. If the answer is in the negative, further issues arise. (2) After stating the traditional issues of duty and interest applicable to qualified privilege, the Court of Appeal enunciated what it described as "a circumstantial test." The second issue is whether that test is correct in law. (3) If neither the generic test nor the circumstantial test is correct, what is the applicable law regarding qualified privilege in respect of political speech containing a defamatory and factually false statement which was honestly believed to be true? Under this heading the requirements and conditions applicable to such a qualified privilege (if any) are in dispute. (4) Whatever test is laid down, what are the respective functions of judge and jury? (5) Depending on the way the issues of law are resolved, should the decision of the Court of Appeal be affirmed or should it be quashed? (6) What order should be made?
Issue (1): Generic qualified privilege and political speech.
Counsel for the newspaper did not invite your Lordships to develop English law in line with the landmark case of New York Times Co. v. Sullivan (1964) 376 U.S. 254. The United States Supreme Court unanimously held that a public official could not succeed in an action for libel without proving that the defendant was actuated by actual malice, that is, at least with a reckless disregard of the truth. The question was whether a particular advertisement forfeited constitutional protection by reason of the falsity of some of the factual statements and the alleged defamation of a public official. The Supreme Court declared the relevant state law unconstitutional. In the present case counsel for the newspaper cited passages from the classic judgment of Brennan J. in the Sullivan case about the chilling effect on freedom of speech of too broad a defamation law. Perhaps for present purposes the most important passage is the following (at pp. 278-279):
Given the limited way in which counsel used the Sullivan case I need not explore the subsequent development of the doctrine in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 and other cases.
Counsel submitted that the House should recognise a qualified privilege extending to the publication by a newspaper to the public at large of factual information, opinions and arguments concerning government and political matters that affect the people of the United Kingdom. For convenience, I will call this a generic qualified privilege of political speech. A distinctive feature of political speech published by a newspaper is that it is communicated to a large audience. And this characteristic must be kept in mind in weighing the arguments in the present case. It is further essential not to lose sight of the factual framework in which the question arises, namely a defamatory and factually incorrect statement which the newspaper believed to be true.
It is now necessary to explain what is meant by a generic qualified privilege. It is to be contrasted with each case being considered in the light of its own particular circumstances, that is, in an ad hoc manner, in the light of the concrete facts of the case, and balancing in each case the gravity of the damage to the plaintiff's reputation against the value of publication on the particular occasion. A generic privilege, on the other hand, uses the technique of applying the privilege to a category or categories of cases. An example is the rule in the Sullivan case, which requires proof of malice in all defamation actions by public officials and public figures. In the present case counsel for the newspaper argues for a generic test not applicable to a category of victim (such as public figures) but dependent on the subject matter (political speech).
This is a branch of law in which common law courts have arrived at sharply divergent solutions. In the Sullivan case the United States Supreme Court upheld a public figure defence. In Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 the Australian High Court allowed a qualified privilege of political speech subject to a requirement of due care. In impressive and valuable judgments Elias J. (now Chief Justice) and the Court of Appeal of New Zealand allowed a generic defence of free speech, the rationale of the decisions being policy considerations applicable to New Zealand: Lange v. Atkinson  2 N.Z.L.R. 22 and  3 N.Z.R. 424. And in Reynolds v. Times Newspaper Limited  3 W.L.R. 862 the Court of Appeal enunciated a circumstantial test depending substantially on the source of the information. There are at stake powerful competing arguments of policy. They pull in different directions. It is a hard case in which it is unrealistic to say that there is only one right answer. And in considering the decisions in other jurisdictions it is right to take into account that cultural differences have played an important role.
Counsel for Mr. Reynolds submitted that a generic qualified privilege of political speech, defeasible only by proof of malice or reckless disregard of the truth, would make the prospect of suing a newspaper which published defamatory and false allegations about a politician without checking the facts unduly difficult.óKóóK On the other hand, counsel for the newspaper argued that in the case of an unchecked publication alleging grave misconduct the newspaper would be at significant risk of an adverse jury verdict on the ground of recklessness. He submitted that in the absence of a generic qualified privilege investigative journalism into political matters is inadequately protected. He argued that the generic test will result in more predictable decisions. And he emphasised that it would be consistent with the spirit of the new legal landscape to develop the law in this way.