|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
Developments in regard to recognition of the fundamental right of free speech and to the nature of the electoral process since the end of the nineteenth century have reinforced the arguments in favour of the wider availability of the qualified privilege to those who publish material to the general public on matters of general public interest. There are powerful dicta to the effect that there is no inconsistency between article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the English common law on freedom of speech: see Attorney-General v. Guardian Newspapers Ltd. (No. 2)  1 A.C. 109, 283 per Lord Goff of Chieveley. But there can be no doubt that the incorporation of the Convention into English law by the Human Rights Act 1998 has strengthened the arguments in favour of the principles which are set out in that article.
In Braddock v. Bevins  1 K.B. 580 it was recognised that it was necessary for the welfare of society that there should be a frank exchange of information and opinions on matters relating to the exercise of the franchise by the electorate. Since that decision the width and subject matter of that exchange have been enlarged still further by a greater concentration upon the parties rather than on individuals in the electoral process. The growth of public opinion polls, both during election campaigns and between elections, has tended to shift attention towards the performance of the parties relative to each other throughout the entire calendar. The public conduct of leading politicians is now seen as the embodiment of a party's performance and credibility. Recent developments in the method of electing candidates through party lists in the elections for the Welsh Assembly, the Scottish Parliament and the European Parliament have added to that development. These developments show that the case law which confined the privilege to comment on individual candidates at election time and to the electoral process within their own constituencies has become outdated. They support the argument, in a wider public interest, for the wider availability of the defence of qualified privilege.
But the question remains: should we now recognise a common law generic qualified privilege for political discussion? On balance I am of the opinion that this would not be satisfactory, bearing in mind the nature of the occasion and the use which would be likely to be made of it. It may be difficult to achieve a satisfactory definition of the category which will eliminate the risk of its being applied more widely to discussion about people in public life generally. A category which went that far was not asked for in this case, and I would regard it as unacceptable. But the greater risk is of defamatory statements of fact being communicated to a wide audience, based upon information communicated to the media by sources which those who publish the information must protect and consequently will not be revealed to the individual. The balance is a delicate one, as there are powerful arguments in favour of the constitutional right of free speech and, where politicians are involved, the interest and duty tests are likely to be satisfied in most cases without too much difficulty. But the importance which must be attached to the principle which justifies the protection of their sources by the media - which has an essential part to play in the role of the media in a free and democratic society - carries with it certain penalties.
One of these, I believe, is the discipline of having to justify each claim to the benefit of qualified privilege should the statements of fact which are made by the media turn out to be defamatory. The description of this discipline as having a "chilling" effect on free speech, as if this in itself shows that something is wrong with it, is too simple. Of course, it does "chill" or inhibit the freedom of the communicator. But there are situations in which this is a necessary protection for the individual. The first line of protection is removed, if the occasion justifies it, by the defence of qualified privilege. Proof of malice, which is the second line of protection, is likely to be very difficult, if not impossible, if the sources of the information cannot be identified. Taken on a case by case basis, the risk that this will be so is one which can be accepted as being in the public interest and therefore justified. But I would be unwilling to extend that risk to political comment generally. I would decline to recognise in this area of our public life a generic qualified privilege.
On this aspect of the case therefore I too am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.
The circumstantial test
As I see it, the application of this third test to the facts of this case raises an issue about the taxomony, or structure, of the common law relating to qualified privilege. There is no doubt that the Court of Appeal broke new ground when it identified this as an additional test which had to be satisfied in relation to any individual occasion when applying the law of qualified privilege. I do not see this, in itself, as a basis for criticising what was, on any view, an admirable, forward-looking and imaginative judgment. Initiatives of this kind are part of the life-blood of the common law. We all benefit from the constant process of adjustment and refinement as one case follows upon another and new problems reveal how the law can be explained better or further clarified.
The difficulty is, perhaps, more one of detail rather than of principle. In the past it has always been necessary to consider the circumstances in order to decide, as a matter of law, whether the interest and duty tests were satisfied. These are not abstract concepts. The occasion has to be identified, because it is the occasion which attracts the qualified privilege. To identify the occasion one must examine the nature of the material, the persons by whom and to whom it was published and in what circumstances. It may be necessary to resolve some questions of fact before the issue of law can be addressed as to whether the occasion was privileged. But the point is that if the issue of law is resolved in favour of the publisher and the argument is then taken against him that because he has misused the occasion he has lost the benefit of the privilege, further questions of fact will be raised. They too will involve a consideration of the circumstances. But it does not follow that the circumstances which will be relevant at this stage of the inquiry will be the same as those which were relevant to the question whether the occasion was privileged. On the contrary, they are likely to be different, as the question which must be answered at this stage is a different question.
As Lord Diplock explained in Horrocks v. Lowe  A.C. 135, 149:
Lord Diplock then reviewed the various situations in which it may be proved against the publisher that there was some other dominant and improper motive on his part. The commonest case is where the dominant motive is not to perform the relevant duty or to protect the relevant interest but to give vent to a personal spite or ill-will towards the person defamed. This may be proved by direct evidence or by inference from the circumstances.
The test of malice; if I may paraphrase Brett L.J., as he then was, in Clark v. Molyneux (1877) 3 Q.B.D. 237 at 247 is: has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity. It was contended in Horrocks v. Lowe that the inference of malice should be drawn from the contents of the speech, the circumstances in which it was made, the defendant's failure two days later to apologise and the evidence which he gave in the witness box. But in the end the judge, who was sitting without a jury, declined to draw the inference that the defendant was indifferent to the truth or falsity of what he said.
In my opinion that case shows that the question of malice also involves an examination of the circumstances. But there is this difference. The question whether the occasion was privileged is a question of law for the judge. The question whether the occasion was abused because of malice is a question of fact which, if the trial is by jury, the jury must decide. This separation of function is clearly identified in the Scottish cases which I mentioned earlier. They were all decided on the preliminary issue of law as to whether the occasion was privileged. In each case the pursuer was seeking the approval of issues which were to be put before the jury at a jury trial. They were unwilling or unable to allege malice, so the whole question turned on the issue of qualified privilege. If the defence was upheld and malice was not averred there was no issue which could be put to the jury. In the United States of America the same separation of function is to be found in paragraph 619 of the American Law Institute, Restatement of the Law (1977), Torts 2d, Ch 26:
I think that the circumstantial test tends to obscure this difference of function and, perhaps even more importantly, to obscure the difference between questions which go to the question of malice and the question whether the occasion was privileged. It is too widely formulated. It includes "the nature, status and source of the material, and the circumstances of the publication" without any qualification as to the purpose of examining this evidence  3 W.L.R. 862, 899G. It has had the effect in this case of introducing, at the stage of examining the question of law whether the occasion was privileged, assumptions which I think are relevant only to the question of fact as to the motive of the publisher: as where it is said that it is one thing for him to publish a statement taken from a government press release or the report of a public company chairman or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent or a business competitor or a disgruntled ex-employee: p. 909H-910A. In its application to the facts of this case, it has introduced questions as to the use of sources, as to a failure to publish Mr. Reynold's own account of his conduct, as to the appellants' failure to alert him prior to the publication of their conclusion that he had lied to his coalition colleagues and knowingly misled the Dáil so as to obtain his observations on it: p. 911F-H. In my opinion these considerations go to the question whether the appellants abused the occasion. This is a question of fact for Mr. Reynolds to establish upon a review of all the evidence. They do not go to the question whether the occasion itself was privileged.
In my opinion the circumstantial test is confusing and it should not be adopted.
I consider that the Court of Appeal were wrong to hold at p. 912A, as a matter of law, that in the light of the issues which they considered in their application of the circumstantial test the publication was not protected by qualified privilege. Although there is plainly a question as to whether the occasion was abused, I would hold that the prior question as to whether the occasion itself was privileged has not been properly addressed. It seems to me still to be an open one.
I would allow the appeal. In my opinion the question of law as to whether the occasion was privileged should be reconsidered by the judge at the new trial.