Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others  continued

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(iii) There are further reasons why the exception of malice is a dubious safeguard. Few persons contemplating bringing a defamation suit would derive much confidence from advice that, if the case were skilfully handled, their lawyers might succeed in proving malice. The defendant is entitled to a direction that, while recklessness as to whether the facts are true or not amounts to malice, mere carelessness, impulsiveness, vehemence of language, and even gross and unreasoning prejudice, do not: see Horrocks v. Lowe [1975] A.C. 135, 145 to 146 and 150, per Viscount Dilhorne and Lord Diplock respectively. So too, although much was made for the present appellants of the ability of a jury to find malice if a defendant newspaper elects not to reveal its sources, the defendant will normally be entitled to a direction that in itself unwillingness to reveal confidential sources is not evidence of malice. The burden of proving malice is a heavy one and it may be extremely difficult to establish: Spring v. Guardian Assurance Plc. [1995] 2 A.C. 296, 329 per Lord Slynn of Hadley, 346 per Lord Woolf.

(iv) It is doubtful whether the suggested new defence could sensibly be confined to political discussion. There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a claim to be free of restraints on freedom of speech.

(v) The existing balance between the right to personal reputation and freedom of speech has been carefully and gradually developed over the years by common law and statutes. It is true that the restrictions on freedom of speech that have been thought necessary to give reasonable protection to personal reputation may have a tendency to chill the publication, not only of untruths, but also of that which may be true but cannot be proved to be true. But there is nothing new in this. Nor, as far as I am aware, is there any way of assessing which tendency is the greater--although experience of libel litigation is apt to generate a suspicion that it is the former. A new generic qualified privilege of the width primarily urged for the appellants would do violence to the present pattern of the law without any compelling evidence of necessity. As regards discussion of government and political matters, the defences of justification, fair comment and privilege for fair and accurate reports of certain proceedings would all, at one stroke, be rendered virtually obsolete. No longer would the defendant have to prove the truth of any defamatory allegations or substratum of fact. No longer would any report have to be fair and accurate. The sole safeguard would be the possibility of the plaintiff's proving malice, as to the adequacy of which I have already expressed misgivings. Of course a trial judge may point out that the truth of an allegation has not been pleaded or proved, but such niceties can be buried beneath the general impression conveyed to the public of who has won or lost the case.

(vi) The foregoing considerations do not exert the same force against the solution evolved in the Australian Lange case 189 C.L.R. 520. Reconciling the differences of opinion in Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104 and Stephens v. West Australian Newspapers Ltd. (1994) 182 C.L.R. 211 and in some respects modifying the view of the majority in those cases, the High Court in Lange settled on a new common law privilege for communications to the general public on government or political matters, conditioned by a defence onus of proving reasonableness of publication. New South Wales statute law was held to be consistent with this solution. The federal Constitution, providing for representative and responsible government, was now seen, not as a direct source of the privilege, but as a restriction on legislative power and a background or context helping to demonstrate a need to develop the common law of Australia. As I see it, however, the United Kingdom is no less a representative democracy with responsible government than Australia. The same can be said of other comparable jurisdictions, including New Zealand. For the purposes of defamation law, the background or context does not seem materially different. The constitutional structures vary, but the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies.

    But the Australian solution is not supported by either side in the present litigation (the fallback position of the appellants differing as to onus), and I share the view that your Lordships should not impose it without at least some difference of emphasis. The whole purpose of defamation law is to enable a plaintiff to clear his or her name. The privilege required for reasonable freedom of speech does run counter to that purpose in some cases. A major expansion of the privilege, such as may have been achieved in Australia, shifts the focus of political defamation to the conduct of the defendant. In practice it may leave a politician plaintiff without redress. His or her private life may be immune from the extended privilege, but otherwise the opportunity of a public clearing of name may be virtually gone. If the Australian solution has disadvantages, they may lie in this change of focus and in the singling out of politicians as acceptable targets of falsehood.

    Further, it is hard not to see something a little incongruous or awkward about the proposition stated in the Australian Lange case:

     "Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege" (189 C.L.R. 520, 573).

This appears to set an Australian judge the task of determining what would have been the common law of England on the case at hand, at some unspecified date, before the judge can decide whether to disapply that law. If workable in Australia, it could hardly be appropriate in England.

(vii) In the judgment now under appeal the Court of Appeal described the New Zealand Lange case as the sheet anchor of Lord Lester's arguments [1998] 3 W.L.R. 862, 906D. In that case the New Zealand courts struck out on a new line in deciding not to apply the decision of the New Zealand Court of Appeal in Templeton v. Jones [1984] 1 N.Z.L.R. 448. That decision was not in proceedings against a newspaper or a broadcasting station but, even so, the approach in the New Zealand Lange case is different.

    The parties in Templeton v. Jones were rival candidates for a parliamentary seat at a general election. The defendant had made to the annual general meeting of the electorate branch of his political party a speech in which he said (inter alia), apparently as a statement of fact, that the plaintiff despised Jews. Copies of his speech were distributed by the defendant to the parliamentary press gallery. As a result the allegation in the speech was broadcast in a national television news programme. The action was brought on that publication, for which it was not denied that the defendant was responsible. On an appeal from a pre-trial ruling the Court of Appeal held that there was neither any general privilege protecting publication of political matter to the public at large, nor in the particular circumstances any privilege protecting the publication of this allegation by the defendant.

    On the question of general privilege, the authorities cited specifically in the judgment were from several jurisdictions. From England Duncombe v. Daniell (1837) 8 C. & P. 222; Braddock v. Bevins [1948] 1 K.B. 580; Plummer v. Charman [1962] 1 W.L.R. 1469, 1474, per Diplock L.J.; and Blackshaw v. Lord [1984] Q.B. 1. From Australia Lang v. Willis (1934) 52 C.L.R. 637, 667, per Dixon J. From Canada Douglas v. Tucker [1952] 1 D.L.R. 657; Globe and Mail Ltd. v. Boland (1960) 22 D.L.R. (2d) 277; Jones v. Bennett (1968) 2 D.L.R. (3d) 291; and Lawson v. Chabot (1974) 48 D.L.R. (3d) 556. From New Zealand Bradney v. Virtue (1909) 28 N.Z.L.R. 828, 839, per Edwards J.; Truth (N.Z.) Ltd. v. Holloway [1960] N.Z.L.R. 69; Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. [1971] N.Z.L.R. 961; and Brooks v. Muldoon [1973] 1 N.Z.L.R. 1. In the light of these authorities, and notwithstanding New York Times Co. v. Sullivan 376 U.S. 254, the New Zealand Court of Appeal in Templeton v. Jones declined to introduce in New Zealand a new generic privilege.

    My Lords, with the benefit of the arguments in the present appeal and in the appeal to the Privy Council in the New Zealand Lange case, I have returned to the authorities on which Templeton v. Jones was founded. As the authorities stood in 1984, I continue to regard the decision in Templeton v. Jones as inevitable. It is as well to add that in Horrocks v. Lowe Lord Diplock remarked (see [1975] A.C. 135, 152) that qualified privilege does cover what local councillors say at meetings of the council or its committees; but that appears to be an exception to and not to undermine his broader proposition in Plummer v. Charman [1962] 1 W.L.R. 1469, 1474:

     "I need hardly say that there is no privilege known to the law which entitles persons engaged in politics to misstate a fact about their opponent provided that they say it honestly even though untruthfully. They can comment upon the conduct of persons in public life, provided they do so honestly and without malice."

It is also true that, (unlike earlier authorities and the New Zealand Lange case and the present case) Templeton v. Jones related to a television programme. The power of the media and the facility of communicating with the general public have certainly been much increased by television. It seems to me, however, that this is far from a ground for extending the heads of privilege. On the contrary, if anything it adds to the importance of principles aimed at ensuring journalistic responsibility.

    But the common law nowhere stands still. In this field of much international debate, I think that it was open to the New Zealand Court of Appeal in the Lange case to reconsider Templeton v. Jones. Indeed I would put it more strongly. In the light of the intervening line of cases across the Tasman--namely, the Theophanous, Stephens and Australian Lange cases--I would accept that reconsideration of Templeton v. Jones was either incumbent on the New Zealand courts or at least highly appropriate. It is the result, so far, of their reconsideration with which I respectfully disagree. In the Reynolds case Lord Bingham of Cornhill L.C.J. in giving the judgment of the English Court of Appeal has said that in the New Zealand Lange case " . . . no or at least insufficient weight is given to the proper balance . . . " (see [1998] 3 W.L.R. 862, 907H). For the reasons set out in my present speech, I agree with the Lord Chief Justice and his colleagues. At the same time, as a party to the Privy Council judgment in the New Zealand Lange case, I am equally clear that there is a high element of judicial policy in the resolution of the issue, and that the best course is to refer the New Zealand Lange case back to the New Zealand Court of Appeal to enable account to be taken of the Reynolds case. In other words, the possibility of a difference between English and New Zealand common law on the issue has to be accepted, albeit not advocated.

(viii) International human rights law, whenever relevant, should have an important part to play in developments of the common law. For United Kingdom courts, particular importance must attach to the European Convention for the Protection of Human Rights and Fundamental Freedoms, bearing in mind that by section 6(1) of the Human Rights Act 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3)(a) "public authority" here includes a court or tribunal. By section 2(1)(a) decisions of the European Court of Human Rights must be taken into account. The Convention rights here relevant are to be found in article 10.1 (which includes rights to freedom of expression, and to receive and impart information and ideas) and are subject to article 10.2 (which speaks of accompanying duties and responsibilities and authorises such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others). The Act is not yet in force, but naturally the appeal was argued on the footing that regard should be had to it.

    The jurisprudence of the European Court of Human Rights has been reviewed by Lord Nicholls. I need say only that it reveals first an emphatic distinction between fact and opinion, secondly a careful examination of all the circumstances of a particular case before a decision is reached as to whether freedom of expression is to be treated as the dominant right. As the European case law stands at present, no trace is to be found of endorsement of a generic privilege in the political context. This is not surprising in view of the balance aimed at by article 10. I am afraid that the arguments for the appellants would tend, in effect, to divert your Lordships from the European path.

(ix) The Human Rights Act also has a special provision, original to the United Kingdom, pointing to the answer to the present problem. It is section 12:

      "12.--(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.  . . .

      (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.

      (5) In this section -

       court includes a tribunal; and

       relief includes any remedy or order (other than in criminal proceedings)."

    The omitted subsections contain restraints on ex parte and pre-trial relief, and the whole section is inspired by the purpose of ensuring a due measure of media freedom. What are significant in the present context are the references to journalistic material and especially to the extent to which it is, or would be, in the public interest for the material to be published. The focus appears to be on the particular material rather than the general subject matter. Of course the general subject matter is a factor to be considered, but I do not think that a court would discharge its responsibility under the section by going no further than satisfying itself that the material related to government or political matters. A more specific examination appears to be contemplated by Parliament. The common law of qualified privilege should evolve in harmony with that legislative approach.

    Cumulatively the reasons under the foregoing heads lead me to the view that the Court of Appeal in the present case and an earlier Court of Appeal in Blackshaw v. Lord [1984] Q.B. 1 adopted substantially the right approach. The categories of qualified privilege are not closed. When a case cannot be brought within an established generic category, it may nevertheless call for a finding of privilege if in all the circumstances the classical tests of reciprocal interest and duty or common interest are satisfied. Although sometimes newspaper privilege has been put on the ground of common interest (see Perera v. Peiris [1949] A.C. 1, 22), the weight of authority favours the former test and it has the advantage of underlining media responsibility. There are occasions when the media may rightly claim to have a social or moral duty to publish defamatory material to the world at large; but there is no room for any suggestion that the motive of increasing readership or audience is a sufficient interest, nor does it seem altogether realistic to treat the media as no more than citizens communicating with other citizens on matters of common interest. It was indeed the duty of the media on which in his sustained argument Lord Lester placed constant stress.

    In the judgment now under appeal the circumstantial test was separated to some extent from the duty and interest tests. Not entirely, I think, for it was said that, while the duty and interest tests were "in general" satisfied, the circumstantial test was not. This may indicate that the Court of Appeal thought that the general subject matter of the article brought it potentially within qualified privilege but that the particular context and surrounding circumstances ruled the privilege out. The threefold analysis is largely a matter of arrangement. I agree that the twofold classical test is enough, once it is accepted that all the circumstances of the publication are to be taken into account. It is undeniable that a privilege depending on particular circumstances may produce more uncertainty and require more editorial discretion than a rule-of-thumb one. But in other professions and callings the law is content with the standard of reasonable care and skill in all the circumstances. The fourth estate should be as capable of operating within general standards.

    A more formidable argument against the approach of the Court of Appeal is that it introduces at the stage when the existence of privilege is determined issues which are said to be relevant only to malice or abuse of the occasion. In the leading case of London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23, Lord Buckmaster L.C. said: