|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
Weir, A Casebook on Tort, 8th ed., (1996) describes defamation as "the oddest" of the torts. He explains (at p. 525):
Weir, at p. 530, observes that "the courts could arguably have done more to prevent the law becoming as absurd, complex and unfair as it is, without resigning themselves to saying, as Diplock L.J. did, that the law of defamation "has passed beyond redemption by the courts" (Slim v. Daily Telegraph Ltd.  2 Q.B. 157, 179). Weir states that "the law of England is certainly stricter than that of any free country . . ." at p. 528. The argument for addressing the chilling effect of our defamation law on political speech and for striking a better balance between freedom of speech and defamation is strong: see Eric Barendt and others, Libel and the Media: The Chilling Effect, (1997), Clarendon Press, Oxford, pp. 191-192. But the burden is on counsel for the newspaper to demonstrate that the development he advocated would in practice be fair and workable, and could sensibly be accommodated in our legal system.
On balance two particular factors have persuaded me to reject the generic test. First, the rule and practice in England is not to compel a newspaper to reveal its sources: see section 10 of the Contempt of Court Act 1981; R.S.C., Ord. 82, r.6; and Goodwin v. United Kingdom (1996) 22 E.H.R.R. 123, 143 at para. 39. By contrast a plaintiff in the United States is entitled to a pre-trial enquiry into the sources of the story and editorial decision-making: Herbert v. Lando (1979) 441 U.S. 153. Without such information a plaintiff suing for defamation in England will be substantially handicapped. Counsel for the newspaper observed that the House could recommend a reform of the procedural rule. This is an unsatisfactory basis to embark on a radical development of the law. Given the procedural restrictions in England I regard the recognition of a generic qualified privilege of political speech as likely to make it unacceptably difficult for a victim of defamatory and false allegations of fact to prove reckless disregard of the truth. Secondly, a test expressed in terms of a category of cases, such as political speech, is at variance with the jurisprudence of the European Court of Human Rights which in cases of competing rights and interests requires a balancing exercise in the light of the concrete facts of each case. While there is as yet no decision directly in point, it seems to me that Professor John Fleming is right in saying that the basic approach of the European Court of Human Rights has been close to the German approach by insisting on individual evaluation of each case rather than categories: "Libel and Constitutional Free Speech," in Essays for Patrick Atiyah, ed. Cane and Stapleton (1991), p. 333 at pp .337 and 345. Our inclination ought to be towards the approach that prevails in the jurisprudence on the Convention. In combination these two factors make me sceptical of the value of introducing a rule dependent on general categorisation, with the attendant sacrifice of individual justice in particular cases.
I would answer question (1) by saying that there is no generic qualified privilege of political speech in England.
Issue (2): Soundness of the circumstantial test
My Lords, it is important to appreciate that the judgment of the Court of Appeal marked a development of English law in favour of freedom of expression. In the context of political speech the judgment recognised a qualified privilege, dependent on the particular circumstance of the case, provided that three requirements are fulfilled. The first and second are the familiar requirements of duty and interest. The Court of Appeal then stated a third and separate requirement. The passage in the judgment reads as follows (at pp. 899G-900B):
Later in the judgment the Court of Appeal observed (pp. 909H-910C):
The circumstantial test was not put forward in the Court of Appeal by either side or raised in argument. But the development was well within the power of the Court of Appeal. On balance, however, I am satisfied that the support for it in the authorities is not great. Except for obiter dicta in Blackshaw v. Lord  Q.B. 1, 42 the other decisions relied on by the Court of Appeal (see  3 W.L.R. 862, 894H-899D) are cases of institutional reporting which are materially different fromóKóóK reports resulting from investigative journalism. And Blackshaw v. Lord predates the Derbyshire case  A.C. 534.
The Court of Appeal observed "We question whether in practice this [the circumstantial test] is a test very different from the test of reasonableness upheld in Australia." This is a reference to the decision of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The Lange decision was substantially influenced by a New South Wales statute which imposed a standard of reasonable care on publishers: see Michael Tilbury, "Uniformity, The Constitution and Australian Defamation Law at the Turn of the Century," in Torts Tomorrow: A tribute to John Fleming, ed. Mullany and Linden, (1998), p. 244 for a perceptive analysis of the distinctive Australian context. In reply counsel for the newspaper put forward the Lange solution, with the legal burden on the plaintiff, as an alternative solution. In my view such a development would involve a radical re-writing of our law of defamation. Contrary to the submissions of counsel I also do not think it is a satisfactory way of redressing the imbalance between freedom of speech and defamation in England. I would reject this argument.
For the newspaper counsel argued that the particular requirements of the circumstantial test stated by the Court of Appeal are unduly restrictive. There is force in this argument. I will return to it. Counsel for Mr. Reynolds pointed out in his case:
He submitted that there is a structural flaw in the circumstantial test. He invited your Lordships not to adopt it. I would not accept the circumstantial test is soundly based. Having reached this point I would not wish to be taken to reject entirely the reasoning of the Court of Appeal. It will be recalled that the Court of Appeal had observed (at 910 B-C):
After all, this is the core of the reasoning of the Court of Appeal.
I would however rule that the circumstantial test should not be adopted.
Issue (3): The alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I have done, the only sensible course is to go back to the traditional twofold test of duty and interest. These tests are flexible enough to embrace, depending on the occasion and the particular circumstances, a qualified privilege in respect of political speech published at large.
The critical question is then to decide what requirements should be imposed in respect of qualified privilege in the context of political speech. In my view the passages in the Court of Appeal judgment which I have cited should not be elevated to legal requirements. Those passages, with a distinction drawn between official and "unofficial sources," and between "a government press release" and "the statement by a political opponent," could create the impression that if information is not obtained from a prima facie authoritative source, a privileged occasion does not arise. A rule, principle or approach that in considering a plea of qualified privilege of political speech greater weight should be given to what is said on behalf of the government than what is said on behalf of the opposition, other political parties or pressure groups is unacceptable in our democracy. And I am confident that the Court of Appeal did not intend to make such a ruling.
Counsel for Mr. Reynolds did not invite your Lordship to endorse the observations of the Court of Appeal. Instead he submitted that in the context of political speech qualified privilege must always fulfil as part of the duty test three legal requirements: (1) that the occasion must be one in respect of which it can fairly be said that it is in the public interest that the information should be published; and (2) that a report which "failed to report the other side" would always fail the test; (3) that there is a burden on a publisher of a report to prove that there is a cogent reason why it should be excused in the particular circumstances from justifying the truth of the assertion.
My Lords, the first proposition involves nothing radical or extravagant. It builds on the web of existing law. I am content to accept that it should be the governing principle. The second proposition put forward by counsel as an independent legal requirement is implausible. A failure to report the other side will often be evidence tending to show that the occasion ought not to be protected by qualified privilege. But it would not necessarily always be so, e.g. when the victim's explanation is unintelligible or plain nonsense. This was recognised in the Australian Lange case: 189 C.L.R. 520, 574. The suggested strict requirement runs counter both to the pragmatic approach of the common law and a test dependent on particular circumstances. The third proposition overlaps with the first requirement. But as expressed it would emasculate the qualified privilege of political speech. I would reject it.
Returning now to the requirement that the occasion must be one in respect of which it can fairly be said to be in the public interest that the information about political matters should be published, I would accept that it may be objected that this requirement is imprecise. But this is a corner of the law which could do with the minimum of legal rules. And what is in the public interest is a well-known and serviceable concept. It will, of course, have to be given practical content. Inevitably the question will arise in concrete cases whether the newspaper was entitled to rely on the information it had obtained before publishing. This issue can be accommodated within the test of an occasion in the public interest warranting publication. In my view such an approach complies with the requirement of legal certainty. And in practice the issue will have to be determined on the whole of the evidence. If a newspaper stands on the rule protecting its sources, it may run the risk of what the judge and jury will make of the gap in the evidence.
The context in which the qualified privilege of free speech should be applied is all important. It was said by counsel for the newspaper that the English courts have not yet recognised that the press has a general duty to inform the public of political matters and that the public has a right to be so informed. If there is any doubt on the point this is the occasion for the House to settle the matter. It is an open space in the law which can be filled by the courts. It is true that in our system the media have no specially privileged position not shared by individual citizens. On the other hand, it is necessary to recognise the "vital public watchdog role of the press" as a practical matter: see Goodwin v. The United Kingdom (1996) 22 E.H.R.R. 123, 143, para. 39. The role of the press, and its duty, was well described by the European Court of Human Rights in Castells v. Spain (1992) 14 E.H.R.R. 445, 476, para. 43 in the following terms:
In De Haes Gijsels v. Belgium (1997) 25 E.H.R.R. 1 the European Court of Human Rights again emphasised that the press plays an essential role in a democratic society. The court trenchantly observed (at p. 53; para. 39):
This principle must be the foundation of our law on qualified privilege of political speech.