The Impact of Reynolds v. Times Newspapers
On October 28, 1999, the House of Lords ruled in Reynolds v. Times Newspapers Limited and Others,1 which heralded an important change in libel law in the United Kingdom. Many have called for a change in U.K. law to bring it in line with the law abroad, extolling the virtues of, for example, the Sullivan2 defense in the United States and the qualified privilege defense propounded in Australia's leading case, Lange v. Australian Broadcasting Corporation.3
The House of Lords, while considering these options, did not feel it appropriate to go as far as these legal experts had suggested, which was to provide a generic defense for "libellous statement[s] made in good faith in the course of political discussion." It did, however, clarify the existing common law defense known as qualified privilege. More importantly, the House of Lords provided helpful guidelines for defendant publishers and broadcasters-described by one editor as "a ten-bar gate of principles"4 over which to hurdle-and a powerful and persuasive obiter dictum that defendants will no doubt quote to the lower courts.
What Is Qualified Privilege?
At common law in the United Kingdom, qualified privilege is a defense to defamation proceedings in which a statement that turns out to be untrue has been published under certain circumstances. The conditions for a qualified privilege are relatively narrow. For example, a qualified privilege attaches to the republication of a government report or other similar document that might contain untrue statements; so long as there was no evidence that the publication was done with malice, the privilege would apply and the statement would not be actionable. "Malice" is defined as circumstances in which the publisher has made the statement recklessly, knowing it to be untrue, spitefully, maliciously, or for some improper motive. The burden of proof is on the defendant to show that the occasion was privileged but rests on the plaintiff to defeat it by showing that the defendant was acting with malice.
The principle behind the common law defense is that there will be some occasions where the communication should be made for the "common convenience and welfare of society."5 The recipient's interest in receiving the information must outweigh the need to protect the reputation of the individual whom it may damage.
This defense applies to a wide variety of circumstances. Matters such as employment reference letters are generally considered to be covered. However, the qualified privilege would be defeated if it were shown that the ex-employer had been malicious in writing the reference. A complaint about a doctor to the medical review board might also be covered-unless it were made without an honest belief in its truth by a disgruntled patient.
It is always a matter for the court to decide if, on the particular facts, the privilege applies and is not defeated by malice. It must also decide if the publication was proportionate in the circumstances. If a defendant disseminated the matter more widely than necessary, e.g., if the complaint about the doctor was not made to the medical review board but was simply published in the local paper, the publication might not be considered proportionate and hence not covered by the privilege.
The decision will rest on the identities of the publisher and the person about whom the statement is made. Key to this defense is the existence of a duty by the maker of the statement to impart the information and a corresponding interest by the recipient in receiving it; "this reciprocity is essential."6 In the above example, the medical review board would have an interest in hearing the complaint, and indeed a duty to investigate and act upon it, but the wider press might not unless the matter is of significant public interest.
Many libel law practitioners have said that this defense's lack of certainty called for revision and, to some extent, clarification. The hope of many legal professionals was that a defense akin to the U.S. rule in Sullivan could be established by revitalizing the common law defense of qualified privilege. The press has historically not been able to rely on its duty to inform the public where it believed the public had an interest in receiving that information and where it published in good faith. Such publications were not covered by qualified privilege, and the primary defense available to the press and the media was that of justification-proving the truth of the allegations and statements made. Yet even with highest journalistic standards, reporters can get things wrong and have been severely penalized for doing so. The alternative was to publish only stories that the press knew they could prove to be true in court, leading to a chilling effect on the freedom of speech. This background of frustration lay behind an attempt to change the law in the House of Lords .
History of the Reynolds Case
The publication that brought about the House of Lords' decision was an article in the Sunday Times published in November 1994, a week after Albert Reynolds, former Taoiseach7 of Ireland, had resigned. He sued the Sunday Times, claiming that the article defamed him by alleging that he had deliberately and dishonestly misled the the Irish Parliament by withholding vital information and had lied to both Parliament and his colleagues.
The action was tried by Justice French and a jury between October 14 and November 19, 1996. The live issues at trial were the defamatory meaning of the article, justification, damages, malice, and qualified privilege at common law. The jurors found that the allegations in the article were not true, so the defense of justification failed. However, they also found that neither the journalist nor the editor had acted maliciously. Therefore, if the judge found that the occasion was one of privilege at common law, the defendants would have a complete defense to the action.
Despite finding the article to be untrue, the jury awarded no damages to the plaintiff. Justice French substituted an award of one penny. The judge also rejected the newspaper's contention that there should be a broad qualified privilege defense for "political speech." He found that the publication was not privileged at common law.
Reynolds appealed to the Court of Appeal on the grounds that the judge had misdirected the jury on various matters, thus denying him a fair trial. The defendants also cross-appealed on the question of qualified privilege. The Court of Appeal8 allowed Reynolds to appeal on the grounds that he had been denied a fair trial, setting aside the verdict and ordering a retrial.9 In addition, the newspaper failed to convince the Court of Appeal that it had published in circumstances of privilege and that it should be allowed to rely on this at the retrial. Nor did the Court of Appeal accept the concept of a wider "public figure"-style defense. However, the court did formulate a "circumstantial test" that it said should be used to consider whether an occasion was privileged.
This test was in addition to the traditional duty-interest test, historically applied in qualified privilege cases, and provided that the court should take into consideration, among other matters, the nature, status, and source of the material.
Because this matter was one of significant public importance, the House of Lords granted leave for the matter to be appealed before it. The defendants, applying to the House of Lords, are referred to as the appellants; Mr. Reynolds is the respondent.
The Parties' Cases
According to Lord Nicholls of Birkenhead, who gave the leading judgment in Reynolds, the newspaper's case could be reduced to the following:
that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true, if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive.
This is not dissimilar, one might think, from the Sullivan defense.
In other words, the appellants were arguing that there should be a generic defense, a new category of occasion for applying the defense of common law qualified privilege, namely, for "political information." The respondent rejected this approach, saying that liability could also arise if, having regard to all the circumstances, it was not in the public interest for the newspaper to have published the information as it did.
The position, therefore, was that the appellant newspaper was arguing for a purely subjective consideration of the matter, while Reynolds's case was that an element of objectivity was required .
The Law as It Stood
The House of Lords considered the matter, with Lord Nicholls stating at the outset that "the defense of qualified privilege must be seen in its overall setting in the law of defamation." He went on to outline the cause of action in defamation and the defenses available.10
In his look at the law of defamation, Lord Nicholls stated that "the common law has long recognised the 'chilling effect' of this rigorous, reputation protective principle," of defamation law in the United Kingdom, where a claimant is not required to prove that the allegations are false or that he has been damaged by the publication. He went on, however, to state that "there must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages if they are wrong. In the wider public interest, protection of reputation must then give way to a higher priority."
In his description of the defense of privilege, Lord Nicholls referred to situations where, in "the common convenience and welfare of society"11 and "in the interests of society,"12 it becomes right that certain communications should be protected, even where they may be defamatory, provided that the views are honestly held. Lord Nicholls explained that "[w]hen the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged." It is interesting to note that the cases that he cited date from the midnineteenth century, showing the extent to which the principles of the common law defense of qualified privilege are ingrained in old case law. It should be noted, therefore, that the appellants' attempt to create a new category within the defense of qualified privilege was fairly radical.
The United Kingdom has two types of qualified privilege. One is absolute and covers matters such as statements made by judges in the course of judicial proceedings. The other is qualified, and it can be defeated by malice. The intention of the maker of the statement, therefore, and the circumstances in which a potentially privileged statement is made, are of paramount importance in establishing the defense.
In his explanation of qualified privilege, Lord Nicholls again reiterated the principle that "the list [of categories and circumstances of qualified privilege] is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy." The underlying principle of common law qualified privilege is that
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.13
Thus, if a party wishes to rely on the defense of qualified privilege, it must persuade the court that the occasion was one of privilege, that the reciprocal duty-interest test is satisfied and, if raised by the claimant, must rebut any suggestion that the party was malicious (although note that the burden is on the claimant to prove malice). The court must decide if, in the public interest, the publication should be protected, and it must regard all circumstances in doing so. This is the way that the common law has historically dealt with this defense; it does not look at the words separately from the circumstances in which they were published, nor does it ignore the identity of the maker, the recipient, or the subject matter of the defamatory allegation. The Lords did not accept the Court of Appeal's "circumstantial test" and stated that there was no separate or additional question to the duty-interest test.
This is where the appellants' demand for a generic form of qualified privilege left the tracks of the established qualified privilege principles. They argued that political information per se should be covered as a separate and independent category. In Lord Nicholls's words, "the newspaper seeks the incremental development of the common law by the creation of a new category of occasion when privilege derives from the subject matter alone. Political information was broadly defined in the Australian Lange case, and adopted by Lord Nicholls as "information, opinion, and arguments concerning government and political matters that affect the people of the United Kingdom."
The appellants argued that if political information was not privileged regardless of the status and source of the material and the circumstances of the publication-the current position under the common law defense of qualified privilege-then the court would be required to assess the public interest value of a publication, while taking these matters into account. They argued that this led to unpredictability and, importantly, "would put the judge in a position which in a free society ought to be occupied by the editor. Such paternalism would effectively give the court an undesirable and invidious role as a censor or licensing body."
These strongly stated arguments threatened to limit the powers of the court and, unsurprisingly perhaps, were not accepted by Lord Nicholls. What was surprising was Lord Nicholls's description of them as "powerful arguments."
His judgment begins with the impressive words, "My starting point is freedom of expression." And indeed, it can be taken from this decision that that should be the starting point in the future when the courts are considering any curtailment of that freedom. He went on to laud both the rights of the individual to protect his or her reputation ("[r]eputation is an integral and important part of the dignity of the individual") and the importance of the press ("it is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept."). No doubt to stifled cheers from members of the press, he went on that "freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country."
He was careful to record in his judgment the importance of an individual's reputation. Indeed, a right to privacy as it has become known, but better described as a right to respect for private and family life, is enshrined in Article 8 of the European Convention of Human Rights, which is now part of U.K. law. It is with a careful eye to these sometimes conflicting rights that the court has had to weigh the right to press freedom, particularly in relation to political information. The way in which this has been done, and as set out in Lord Nicholls's judgment, was in "identifying the restrictions which are fairly and reasonably necessary for the protection of reputation."
The Ten-Point Test
So how did this play out? Lord Nicholls concluded his judgment with a view that the law should not contain a new category of information, the reporting of which would automatically attract qualified privilege. Not only would such an approach fail to provide adequate protection for the reputation of individuals, but it would be "unsound" to distinguish discussion of political information from discussion of other matters of serious public concern.
He felt that the "elasticity" of the current common law approach continued to provide the appropriate protection to both press and the individual. However, he did very usefully outline circumstances that could be taken into account when considering if the defense should apply, and to assist the court in giving, the "appropriate weight" to the importance of freedom of expression by the media on all matters of public concern.
These circumstances have become known, somewhat inaccurately, as "the ten-point test." It is not a case of simply ticking the boxes and winning your free gift of a qualified privilege defense. The terminology chosen by Lord Nicholls was no doubt chosen carefully: "Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only." He then set out the matters that could be considered by the court and indeed should be considered by journalists, editors, and publishers. He concluded that "the list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case." The number of caveats in the accompanying explanation point to the fact that it is guidance and not a simple test. The matters to be taken into account included the following:
. 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.
. The nature of the information and the extent to which it was of public concern.
. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind or are being paid for their stories.
. The steps taken to verify the information.
. The status of the information. The allegation may have already been the subject of an investigation that commands respect.
. The urgency of the matter. News is often a perishable commodity.
. Whether comment was sought from the plaintiff. He may have information that others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
. Whether the article contained the gist of the plaintiff's side of the story.
. The tone of the article. A newspaper can raise queries or call for an investigation, but it need not adopt allegations as statements of fact.
. The circumstances of the publication, including timing.
Above all, the Court was to have particular regard to the importance of freedom of expression. As such, all doubts should be resolved in favor of publication.
Applying the Reynolds Decision
The first occasion on which the Reynolds decision, and what has become known as Lord Nicholls's Ten-Point Test, were applied was, unsurprisingly, in the Reynolds case in the House of Lords. Lord Nicholls believed that the decision of the Court of Appeal should not be interfered with. He said that the newspaper claimed that it did not have the opportunity to plead and prove a case that the Court of Appeal's "circumstantial test" was satisfied, precisely because that test was formulated for the first time by the Court of Appeal only when the matter had come before them. In Lord Nicholls's view, this rationalization held little water. The matters had been sufficiently aired before the Court of Appeal, particularly in light of Reynolds's claim that all the circumstances should be taken into account. However, as stated above, the "circumstantial test" was no more than part of the existing duty-interest test. A claim to privilege stood or fell according to whether the claim passed or failed that test; there were no further requirements.
Applying the House of Lords' own guidelines, Lord Nicholls had to decide if the matter was one of public concern that should be given the protection of privilege. In his view, it was not. "A most telling criticism of the article" he said, was that it had failed to put Reynolds's own side of the story. Mr. Reynolds had not given any press statements about this matter, but had given his account in the Dail . But the journalist in this case, according to Lord Nicholls, did not believe the explanation by Reynolds, and left it out accordingly. An article omitting all reference to this statement would not be a fair and accurate report and would also be misleading. "By omitting Mr. Reynolds's 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."
The article had, therefore, fallen at Lord Nicholls's hurdles. While appreciating that a journalist was "bound and entitled" to reach his own conclusions and to express them "honestly and fearlessly," he was also bound by a duty to publish the other side of the story and the subject's own explanations. In Lord Nicholls's view, the journalist had not done so.
In the circumstances, Lord Nicholls found that, although the matter was "undoubtedly of public concern in this country," the serious allegations "shorn of all mention of Mr. Reynolds's considered explanation, were not information that the public had a right to know." The publication was not therefore one in which it was in the public interest to be protected by privilege in the absence of proof of malice.
Various cases since the House of Lords decision have indicated how the test is being dealt with in these early, perhaps experimental, stages. In two recent cases, the defendant publishers have not succeeded.
In James Gilbert Limited and Rodney Webb v. MGM Limited,14 the Sunday Mirror had run a series of articles alleging that the company, which manufactured rugby balls, did so with the use of "child labour. . . in Indian sweatshops." It was reported that Rodney Webb, a director of the company, had promised to launch an investigation into these serious allegations. Shortly thereafter, the newspaper published a further article, the subject of the litigation, under the headline, "Slave balls firm breaks its promise." Relying on an Indian source, the Mirror alleged that the promised investigation had not been launched. In fact, the investigation had been launched with a team sent to India that was due to return and give its report on the day that the offending article was published.
Applying Reynolds, the court found that the newspaper had failed to carry out a basic investigation and had depen-ded upon an unreliable source. There- fore, the defense of qualified privilege could not succeed.
In July 2000, the Reynolds case was again applied, in Saad Al-Fagih v. HH Saudi Research and Marketing (United Kingdom) Limited.15 The claimant had complained about the publication of an allegation by M, a former friend and colleague of his, to the effect that the claimant had spread rumours about M, including that his mother had procured women for him in his home. The Court followed the test in Reynolds, weighing the public interest in unfettered access to material against the need to protect the reputation of any innocent party. It was held that the standard expected was no more than was required by responsible and ethical journalism. The duty of the journalist to take reasonable care not to publish false information might impose a duty to verify information if feasible. It also specified that there was no special category to which an "intermediate duty" applied, where there would be no duty to verify the truth of an allegation when made in the course of political debate or dispute. What would determine whether qualified privilege attached was what was known to the defendants at the time the decision was taken to publish. The court held that this balancing exercise resulted in the clear conclusion that the public interest in unfettered communication ought to be restricted as being necessary for the protection of the claimant's reputation. On the facts of the case, the court held that there had been wholly inadequate attempts to publish the other side of the story, and the defense failed.
The defense did succeed, however, in GKR Karate United Kingdom Limited v. Yorkshire Post Newspapers.16 A journalist for the Leeds Weekly News wrote an article about a company that provided allegedly substandard karate lessons. The reporter failed to mention that there had been no complaints to the Leeds Trading Standards body, or that the company was not in any way breaking the law. However, Justice Popplewell found that the reporter had honestly believed that her sources and evidence were reliable. She was thus successfully able to rely on the defense of qualified privilege.
The Word on the Street
Opinion differs on the effect that this decision will have on libel law in the United Kingdom. Until more cases have been tried, it will be difficult to tell how Reynolds will be applied, but some commentators see progress toward more freedom of the press.
James Price, QC, barrister at 5 Raymond Buildings, London, who has been involved in numerous high profile libel cases and was a member of the Sunday Times's team in the House of Lords case, agreed. "It is difficult to see just how radical a change it will be," he says, "as the guidelines are very general and will have to be applied in each individual case." However, in his view, the decision was "potentially revolutionary." He explained that where previously there had been no privilege for media reports, except under limited circumstances (where a party responds publicly to a public attack and in relation to the reporting of authoritative bodies such as the courts), this decision "opens up a distinct privilege for investigative journalism" where any benefit of the doubt will be exercised in favor of freedom of speech.
Price suggested that the court has to decide if the publication involves a matter of public concern. This was likely to extend to matters such as health and policing, he felt, although not to the sex lives of celebrities. If the court finds that there is a public right to know, then the inquiry shifts, "and it is a seismic shift," from whether what has been written is true, to whether this was a well-conducted, professional exercise. He believes that the test is very flexible and the courts will consider the information and evidence available to the journalists and the editor at the time that the article was published, as well as the information and evidence that they should have considered. In other words, "it is dependent upon, and reinforces, good journalism."
By the same token, this very flexibility means that the law is not clear. He thought that the test may prove difficult to apply due to its very generality. But resignedly he also commented that this was in the nature of defamation law, which is "a world of shifting sands."
When asked if he thought that this was a step towards the U.S. public figure-style defense, Price replied: "It is quite clear that United Kingdom law has set its face against a blanket defense, subject to proof of malice." He thought that it would be another generation before any further moves were made in that direction.
Even Reynolds's counsel, Andrew Caldecott, QC, of 1 Brick Court chambers in London, was quoted in the Independent after the ruling as seeing a silver lining in the judgment for the press.17 Nicholls's decision, Caldecott said, was a
liberalising measure. . . . Now, where journalists are dealing with a matter of public interest, the focus is on the quality of the newspaper's investigation. Provided there's a balance between what you have said and the evidence you've got, then you have at least a running chance of attracting privilege.
Siobhain Butterworth, head of legal affairs at The Guardian and Observer newspapers, the first of which has gained a name for itself in recent cases of pushing the boundaries of investigative reporting and not being swayed by heavyweight libel claimants, was very positive about the outcome of the case and its potential impact. She said that "the Reynolds decision has and will have an exceedingly big impact on libel law, and is perhaps the most important libel judgment to date."
Pragmatically, she said that the decision "gives journalists the right, in highly prescribed circumstances, to get things wrong." She gave, as an example, a scenario whereby a journalist uses in good faith a high quality, well-placed source in relation to a story of great public interest. In those circumstances, a journalist should not, she felt, be penalized if it turned out that the source was mistaken. She conceded that it was likely only to apply in cases where, by their very nature, the stories were so important that they would be written anyway, but felt that it was an acknowledgment of the fact that "the press has a duty to inform the public of matters of public concern and that the public has an interest in hearing them."
Like James Price, Butterworth did not believe that the decision would lead to a decline in journalists' standards. She thought that all journalists should be-and indeed most journalists were-aware of the ten-point test. Indeed, she also appeared to agree with James Price that the case "reinforces good journalism." She said:
newspapers build up their reputations on trust. . . . if they publish consistently incorrect stories, then they will lose their readerships. It is their own interests, as well as those of the public, to get stories right. I believe that journalists are governed by their own ethical standards and imperatives to ensure that they get their stories right.
Another leading libel and human rights barrister, Gavin Millar, QC at London Doughty Street Chambers, was less convinced that the decision would bring about any significant thaw in the chilling effect of U.K. defamation law on matters of public interest. In his view, the House of Lords decision on the facts in Reynolds, "was not an encouraging start." Due to the uncertainty of the tests set out in the decision, he felt that serious and difficult prepublication decisions might have to be made by journalists, editors, and lawyers as to how the Reynolds test was likely to be applied. According to Millar, they may well "err on the side of caution" before publishing, unsure of just how robust the lower courts would be in applying that test.
Mark Stephens, private practitioner and head of international media law at the London firm Finers Stephens Innocent, similarly felt that it was too early to tell and foresees two major problems. "The non-exhaustive list of checks referred to in the House of Lords' decision is impractically extensive for a newsroom and will be applied by judges whose propensity is to measure each word in the Lords' dicta rather than to apply the themes of the decision." Also, if the lower courts are reluctant to act as boldly as did the House of Lords, the spirit of the decision may not be observed, let alone advanced. Stephens said, "whilst I think that the law should be tested in this area I remain to be convinced that the judiciary are the appropriate custodians of a free press."
It would appear that the decision gives the courts room to maneuver, if they wish to allow the press greater freedom to publish stories of public interest, in good faith, where they have taken all appropriate steps to verify their stories but have got some facts wrong. Whether the courts will use this opportunity to the benefit of the press is another matter.
The European Convention's rival sibling rights of freedom of expression and the right to privacy have recently been incorporated into U.K. law. Although the courts have to balance these two rights in certain cases so that their decision is ultimately in the interests of justice generally and for all the parties concerned, it would appear that Lord Nicholls's dicta means that freedom of expression should weigh the heavier in certain circumstances. It is difficult to see how otherwise to interpret his words: "my starting point is freedom of expression."
1. Reynolds v. Times Newspapers Limited and Others, 1999.
2. New York Times v. Sullivan, 376 U.S. 254 (1964).
3. Lange v. Australian Broadcasting Corp. (1997) 198 C.L.R. 520.
4. Alan Rusbridger, Editor, The Guardian, London School of Economics Media Group Debate "Is Libel a Lottery?" Oct. 24, 2000.
5. Parke B in Toogood v. Spyring (1834) 1 C.M. & R.
6. Lord Atkinson in Adam v. Ward  A.C.
7. Prime Minister.
8. The Court of Appeal included Lord Bingham of Cornhill C.J., Hirst L.J., and Robert Walker L.J.
9. The retrial is expected to take place in the next few months.
10. The entire judgment is available on the Lord Chancellor's website.
11. Parke B in Toogood v. Spyring (1834) 1 C.M. & R.
12. Davies v. Snead (1870) L.R. 5Q.B. 608, 611, Blackburn J.
13. Adam v. Ward  A.C. 309, 334, Lord Atkinson.
14. EMLR  680.
16. EMLR  396.
17. The Independent, "The Tuesday Review, Law," Nov. 23, 1999.
Amber Melville-Brown is head of defamation at the London firm Finers Stephens Innocent.
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