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Cram, Ian --- "Political expression, qualified privilege and investigative journalism - an analysis of developments in English defamation law post Reynolds v Times Newspapers" [2005] CanterLawRw 6; (2005) 11 Canterbury Law Review 143


Ian Cram[*]

I. Introduction

The conflict between, on the one hand, the freedom of media organisations to communicate information about elected office holders to their viewers and readers, and, on the other, political figures' right to reputation, has been the subject of considerable litigation in the courts of England, Australia and New Zealand. The reason for this is not hard to discern. In the respective constitutional settings, freedom of expression (or, in the case of Australia, freedom of political communication) no longer ranks as a residual liberty in the traditional Diceyean sense[1] but has instead been accorded a more formal constitutional status either by virtue of an Act of Parliament (in the United Kingdom and New Zealand) or by judicial implication (in Australia).[2] Predictably, media organisations have been keen to test the outer limits of expressive freedom in these new constitutional landscapes, challenging inter alia common law defamation rules framed in an altogether less speech-friendly era.[3] In ways that attempt to reflect jurisdictionally-distinct substantive and procedural rules, the national courts have thus sought to rein in aspects of defamation laws to signal the heightened importance which is now attached to certain expressive forms. Specifically, in relation to the development of the common law defence of qualified privilege, it has long been accepted that a legal rule requiring publishers to demonstrate at all times the factual truth of statements would inhibit or 'chill' the making of certain claims which were factually accurate but which the publisher was unable to substantiate at that time. Moreover, in an era of universal adult suffrage and mass communications, the narrowly defined classes of persons to whom under nineteenth century precedents false and defamatory statements might be made without attracting liability could no longer be thought to encapsulate the public's legitimate interest in receiving information and ideas about political affairs. At the same time, the protection of office holders' (and aspiring office holders') reputations is also connected to the notion of a well-functioning democracy. Where political figures' reputations are falsely debased, this serves only to hinder informed scrutiny and accountability of candidates for public office and may prevent otherwise suitable persons from putting themselves forward.[4] Additionally, dishonest politicians may use what — from a claimant's perspective — is an onerous libel test as a disingenuous reason for not launching proceedings against a publisher. Again, it is difficult to see how the public interest in informed political debate is thereby advanced. In seeking to give legal form to the appropriate level of protection for political figures, it should, however, be remembered that, unlike ordinary members of the public, such persons may usually count on ready access to national and/or local media to rebut allegations considered damaging.

Having each rejected the standard of 'actual malice' laid down by the US Supreme Court in Sullivan v New York Times[5] as excessively protective of publishers of falsehoods, the task of the respective judges has been to craft rules that take proper account of the interests of voters in modern democracies within the distinct constitutional and procedural traditions of each jurisdiction whilst, at the same time, reflecting the countervailing public interest in maintaining the reputation of politicians and aspiring office holders. In so doing, much judicial ink has been expended in comparative analyses of related common law systems' line-drawing. Indeed, the Privy Council set aside the New Zealand Court of Appeal's 1998 ruling in Lange v Atkinson[6] and remitted it back to the Court of Appeal for rehearing so that the latter might have the benefit of the reasoning of the House of Lords in Reynolds v Times Newspapers Ltd.[7] The Privy Council, it will be recalled, declined to lay down any firm guidance on the balance, stating that the New Zealand courts were 'much better placed to assess the requirements of the public interest in New Zealand'.[8] In the event, as is well-known, an identically-constituted Court of Appeal confirmed that publication to the public as a whole of information about actions and/or qualities of current or former members of Parliament, as well as aspirants to elected office, would constitute a privileged occasion for the purposes of the qualified privilege defence at common law. Nonetheless, in its discussion of s 19 of the Defamation Act 1992 - which permits a plaintiff to rebut the defence where a publisher was 'predominantly motivated by ill-will towards the plaintiff, or otherwise took improper advantage of the occasion of publication'-the Court took in its own words 'a more expansive approach to what constitutes misuse of the occasion.'[9] Specifically, the Court considered that reckless conduct on the part of a publisher would remove the defence. After all, the purpose behind the newly expanded definition of a 'privileged occasion' was to further responsible public discussion and debate.[10] Those who took a 'cavalier' approach to the truth would be likely to forfeit the protection.[11] Of course, under s 19, the burden falls on the plaintiff to rebut the defence, rather than for the defendant publisher to show that his/her conduct was responsible in the circumstances. The difficulties placed in the way of a successful rebuttal include the fact that, where a defendant enters a plea of a qualified privilege, r 285 of the High Court Rules states that 'no interrogatories as to the defendant's sources of information or grounds of belief should be allowed.'[12]

In an empirical study of English defamation practice published in 1997, the uncertainty of the parameters of then existing defence of qualified privilege were considered to induce a degree of self-censorship on the part of the media that 'significantly restrict[ed] what the public [was] ... able to read and hear.'[13] Two years later, the ruling of the House of Lords in Reynolds v Times Newspapers is generally taken to have expanded the circumstances at common law in which responsible publishers can communicate defamatory materials to the world at large without attracting liability, albeit under a methodology in which factors that would be relevant in New Zealand or Australia to an analysis of whether the a privileged occasion had been abused (such as publishing a statement with intent to injure another, malice, or recklessness as to the truth of the statement) are treated, in contrast, as going to the prior issue of whether a privileged occasion has arisen in the first place.[14] The evolution that Reynolds represents in English common law thinking has been rightly characterised by the Master of the Rolls as creating a sui generis form of qualified privilege.[15] The precise manner in which Reynolds has advanced media freedom in England is set out below. In what follows, I argue that, although a clearer sense of the sorts of circumstances in which Reynolds acts as a shield to media organisations wishing to report political news stories has begun to emerge, the application of the Nicholls' criteria to individual cases (particularly in the High Court beyond which relatively few defamation cases proceed) has added its own 'chill' to freedom of expression. If anything, the sentiment that Reynolds would usher in a more protective era for investigative journalism has proved unfounded. Whilst individual factors may be cited (for example the anonymity of sources has on occasions plainly hindered media organisations' efforts to establish that an informant had direct knowledge of the subject matter of the story),[16] at a deeper level, it may be plausibly claimed that the methodology of Reynolds is responsible for the current 'chill'. Andrew Kenyon's recent empirical study of English defamation lawyers' attitudes to post-Reynolds practice revealed a level of unhappiness with the emergent fact-finding role for the jury in cases where qualified privilege is pleaded.[17] Described by some barristers as a 'clumsy and unsatisfactory' method, jury members are now expected to answer detailed factual questions that stand in sharp contrast to their previous role of delivering an overall verdict on the case. The average jury member's lack of awareness of the actual circumstances in which newsgathering occurs has arguably made it easier for claimants to secure favourable answers that undermine the Reynolds defence at this stage of libel proceedings. Having gained this new function, the jury has at the same time lost its historical role in delivering an overall verdict at the end of the trial. There is a view that this removes an important democratic safeguard for freedom of expression, substituting in its place judicial conceptions of 'public interest'.[18]

II. Reynolds

The facts in Reynolds are well-known. Briefly, in an article entitled 'Goodbye gombeen man', the Sunday Times published an account in its London edition of the collapse of the Irish government headed by Albert Reynolds. The article was subtitled 'Why a fib too far proved fatal for the political career of Ireland's peacemaker and Mr Fixit.' It was alleged that the article's gist asserted that the Taoiseach (Prime Minister) had deliberately misled the Irish Parliament and his coalition partners including the Tanaiste (Deputy Prime Minister) over the handling of an extradition request. On the question of whether the newspaper was able to claim the benefit of the qualified privilege defence, the House of Lords unanimously rejected the newspaper's argument that the common law should now recognise a generic category of privileged political expression which might only be defeated on proof of malice or a reckless disregard for the truth. Pointing to, inter alia, the difficulties faced by plaintiffs in establishing malice,[19] the low ethical standards of the national press, the tendency of some sections of the media to exaggerate or distort material for commercial motives,[20] and the difficulties of confining the defence to 'political discussion',[21] their Lordships maintained that such a development would insufficiently protect the individual and societal interests in personal reputation. Instead, the Court required each publisher to show on the facts that (i) he/she was under a duty to publish, and (ii) the audience had a reciprocal interest in receiving the material. In other words, whether the 'duty/interest' test was satisfied would depend upon all the circumstances of publication.[22] For guidance in future cases, Lord Nicholls set out an illustrative, non-exhaustive ten factor checklist. It is worth quoting the guidance verbatim.

1. 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.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern.
3. 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.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information which others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.[23]

According to Lord Nicholls, the weight to be given to any factor might vary from case to case. Where factual disputes existed between the parties on matters concerning the checklist, the jury would retain its role as fact-finder. Acting on those findings, the judge would then rule on whether the occasion of publication was privileged. Lest media organisations had misgivings about the likely impact of this checklist, Lord Nicholls offered a limited degree of reassurance by noting, firstly, that a failure to disclose the identity of its informants should not, in general, count against a newspaper and, further, cautioning against the use of hindsight to judge the conduct of journalists. More broadly, he exhorted the courts in somewhat rhetorical terms to have

particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The courts should therefore be slow to conclude that a publication was not in the public interest ... especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.[24]

On the facts of Reynolds, the newspaper lost its claim to be protected by qualified privilege. Particular weight was placed on the failure either to insert Mr Reynolds' published response (as given to the Irish Parliament) to the serious allegations or to confront Mr Reynolds with the allegations prior to publication with a view to obtaining the plaintiff's views. The reliance upon a political opponent as a source of the allegations also counted against the newspaper. That the London edition of the newspaper had fallen below the standards of responsible journalism was perhaps crucially indicated in the fact that the Irish edition of The Sunday Times version of the same events suggested to its readers that Mr Reynolds had been the victim of circumstances rather than the active deceiver as portrayed to readers in England.

III. Consonance With Article 10 European Court of Human Rights Norms?

The House of Lords was at pains to stress the consonance between the common law as developed in Reynolds and European freedom of expression jurisprudence.[25] In particular, a number of their Lordships stressed that, as with English law, the boundaries between protected and unprotected expression under Article 10 had been constructed without elevating 'political discussion' into a sui generis category of protected expression but were developed instead by detailed reference to the specific factual circumstances and merits of each case. Lord Cooke, for example, declared that 'no trace is to be found of endorsement of a generic privilege in the political context.'[26] A close examination of core features of that jurisprudence suggests, however, that Lord Cooke's strong denial of a privileged position for political expression is mistaken. The Strasbourg Court has signalled, on a number of occasions, the distinctive importance that is attached to political expression in comparison to, say, commercial or artistic expression. This is made clear both in general pronouncements about the links between political expression and informed democratic self-rule, as well as more specific statements about the variable margin of appreciation enjoyed by domestic authorities to regulate different speech types.

In one of its earliest landmark rulings, Handy side v UK, the Court stressed a dual rationale for freedom of expression by stating that it was

one of the basic conditions for the progress of democratic societies and for the development of each individual.[27]

The democracy-enhancing and individual development functions of freedom of expression have since been re-iterated on numerous occasions, notably in Lingens v Austria,[28] Oberschlick v Austria (No. 1)[29] and Oberschlick v Austria (No.2).[30] Articulation of the link between freedom of expression and democratically-governed society is found in Sunday Times v UK, where it was stated that:

freedom of expression constitutes one of the essential foundations of a democratic society.[31]

Likewise, in Lingens, freedom of political debate was considered to lie 'at the very core of the concept of a democratic society which prevails throughout the Convention.'[32] The especial importance attached to the role played by the press/media in imparting political information and ideas and the public's interest in receiving such material in a democracy has also been stressed. Citing earlier pronouncements in Lingens and Oberschlick v Austria (No.1), the Court, in Oberschlick v Austria (No.2), noted that the limits of acceptable criticism were wider in respect of politicians as compared to private persons.[33] The theme was pursued in Castells v Spain where the Court observed that:

Freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment upon on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the core of the concept of a democratic society.[34]

Castells, a Basque senator, had commented on the violent deaths of persons suspected by the state of involvement in the Basque movement. He was critical of what he claimed was the impunity with which state agents were able to hunt down and 'eliminate' supporters of Basque independence. He was convicted of the criminal offence of insulting the government under Art 161 of the Penal Code.[35] At the European Court of Human Rights, the conviction was held to have violated the senator's freedom of expression.

The financial penalties that often attach to criminal libel findings of the domestic courts in Europe may also interfere disproportionately with freedom of expression. In Lingens v Austria, the Court noted that a fine of 15,000 Austrian Schillings imposed on the applicant journalist for criticism of the Chancellor, Bruno Kreisky, in the context of political debate would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community.[36] It declared that:

Whilst the press must not overstep the bounds set, inter alia, for the 'protection of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.[37]

The Court in Lingens drew a distinction between allegations of fact and allegations of comment. Whereas allegations of fact can be proved or disproved, the truth of value judgments could not. It followed that where a domestic legal system required a journalist or publisher to establish the truth of a value judgment, this constituted a violation of Article 10. On the facts in Lingens, the comments about Kreisky were based on undisputed facts about Kreisky's past. The obligation on the applicant imposed by the Austrian Criminal Code to 'prove' the truth of claims that Kreisky had been guilty of 'immoral' and 'undignified' conduct and that his behaviour smacked of the 'basest opportunism' was not consistent with Article 10.

The relatively strict standard of scrutiny that is applied to restrictions upon political expression is to be contrasted with a more relaxed supervisory attitude towards national authorities' constraints upon commercial[38] and artistic expression.[39] Thus, for example, in respect of restrictions placed upon commercial speech, the Court, in Casado Coca v Spain, deferred to the views of national authorities in setting the boundaries of permissible speech in advertising of lawyers' professional services.[40] Restrictions placed by national authorities on denigratory comments made by one business about a competitor in order to draw clients away from the latter were deemed in Jacubowski v Germany to be within the margin of appreciation.[41] Three German courts that had considered the merits of Mr Jacubowski's complaint were unanimous in regarding his comments as an act of unfair competition in breach of 'accepted moral standards', being designed in their view to draw clients belonging to the applicant's former employer away to the new press agency that the applicant set up shortly afterwards.

A further essential element of the freedom in Article 10 is that media organisations must be left to decide for themselves the forms and means of communication. It is not for the Court or national authorities to specify how information and opinions are to be conveyed.[42] This latitude extends as far as recourse to a degree of exaggeration or provocation,[43] a feature that has allowed the publishers of strongly-worded attacks on political figures to claim protection.[44] In Lopes Gomes Da Silva v Portugal, for example, an election candidate was described in a newspaper editorial as representing that which was 'most vacuous, rancid and ridiculous in the Portuguese right.' Elsewhere in the piece the candidate was said to be 'grotesque and clownish'. In ruling that the journalist's conviction for criminal libel violated Article 10, the Strasbourg Court signalled a considerable measure of freedom of debate in matters concerning candidates' fitness to hold public office. The scathing style employed by the journalist was protected not simply on account of the tolerance of a degree of exaggeration and provocation signalled in Prager & Oberschlickv Austria[45] but also because the expression concerned a matter of legitimate public interest and contributed to an on-going debate. The impugned candidate had himself published articles in the media in a similar style and a selection of these were inserted alongside the editorial. In this way, readers were thus able to form their own opinions. Lopes Gomes Da Silva endorses the stance adopted previously in Lingens and Castells, namely that the limits of acceptable criticism of politicians and aspiring office holders are greater under Article 10 than those applied to comments about private citizens. There are even suggestions from Thoma v Luxembourg that civil servants acting in their official capacity are, in their turn, open to a greater measure of media censure than would be permissible in the case of purely private persons, although not to the same extent as their political masters.[46]

IV. Reynolds - The Domestic Aftermath

Whatever the true extent of congruence between Reynolds and European freedom of expression jurisprudence, the academic and practitioner reaction to the House of Lords decision has tended on the whole to be positive.[47] Trindade, for example, endorsed the argument for extending qualified privilege to cover publications to the world at large provided the publisher had taken 'proper steps' to check the accuracy of the material that was about to be published. This might include approaching the politician under criticism and seeking (and incorporating in the published story) any response that was provided. Reynolds did not, however, enjoy universal acclaim. The New Zealand Court of Appeal referred to the empirical evidence produced by Barendt et al which had spoken of the 'uncertainty in both the principles of defamation law and their application'[49] and suggested that

the blurring perhaps even the removal, of the line between occasion and its abuse in Lord Nicholls of Birkenhead's non-exhaustive list must add significantly to that uncertainty.[50]

The Court of Appeal also expressed disapproval of the diminished role for the jury in determining the outer bounds of freedom of expression. Under Reynolds, the collapsing of the distinction between the questions of reach (what type of information can be protected) and effect (how much protection is available) meant that the jury's role would be confined to answering factual questions set by the judge that are then relied upon by the judge to determine whether the defence was available. Where the jury retained a function in relation to the effects stage (in particular the issue of malice), there was arguably a greater constitutional role for lay persons in construing the broader requirements of public interest.[51] In a similarly critical vein, Loveland argued that the ruling

undoubtedly amounts to a step forward in English law's protection of political expression. But the judgment is - in terms of its reasoning and result - a disappointment with potentially pervasive implications.[52]

Loveland's primary concern was that the conflation of the reach and effects stages of analysis devalued the importance of the information itself. Factors such as the malice of the publisher and the professionalism of the journalist now would go to the question of whether the publication was privileged. The Court had ignored the possibility of addressing concerns about the extended reach of the defence by means of reforming the effects limb.

Loveland urged that a generic privilege for political expression could be tempered by modification of the effects side (for example by requiring the defendant publisher to establish that publication was not negligent as occurs in Australia under Lange v Australian Broadcasting Corporation).[53] In this way, apprehension about careless journalism and tabloid excess could be lessened, if not eradicated altogether.

Lord Nicholls himself predicted that 'a valuable corpus of case law' would over time be developed.[54] The flip side to the flexibility inherent in his formulation of the duty/interest test was the addition of several layers of complexity to the law. In truth, Reynolds did create a period of uncertainty in publishing circles in which media organisations and their legal advisers were unsure of what the courts' understanding of acceptable or 'responsible standards of journalism' might comprise.[55] Accordingly, publishers have faced an anxious wait post Reynolds to discover the nature of the new legal landscape and gain what clarification there is to be had from highly fact-specific litigation.[56] In general terms it is suggested that, after an initial period of speech protective rulings in which the public's 'right to know' was given an expansive reading,[57] English law, led by the High Court, now seems to have adopted a less indulgent attitude towards investigative journalism and political expression. The current approach takes a rather narrow conception of 'proper journalism' in which perceived failings in journalistic ethics invariably result in the defence being withheld. To judge by the latest indications in Jameel v Wall Street Journal (Europe)[58] and Galloway v The Telegraph Group Ltd,[59] the defence of qualified privilege is likely to be sustained only after the 'closest and most rigorous scrutiny'.[60] Underpinning this stricter approach lies a concern that, where the defence succeeds, an assertion that a publisher later accepts to be false is left uncorrected, causing damage to the claimant's reputation. In subjecting privilege claims to tough scrutiny, the courts appear to believe that publishers should be more prepared to consider reliance upon alternative defences such as fair comment which become available only when the express/ implied factual basis of the comment is accurate.

V. Post Reynolds Phase 1 - The Expansion of Media Freedom to Engage in Investigative Reporting

In the immediate aftermath of Reynolds, and led by the Court of Appeal, judges appeared inclined to give full expression to the rhetorical flourishes in Lord Nicholls' judgment exulting the importance of freedom of speech. This is evident in three aspects of the first phase: the width accorded to the concept of 'public interest'; the analysis of the reliability of sources; and, finally, the unwillingness of the courts to impose a single, rigid view in any given case of what a 'responsible journalist' would report.

Public Interest

In Loutchansky v Times Newspapers Ltd,[61] the 'public interest' was conceived in sufficiently broad terms to allow the defence to reach well beyond the ambit of more straightforwardly political material to embrace stories about Russian businessmen and their alleged links to Mafia-type organisations. In GKR Karate v Yorkshire Post Ltd, it extended to a critical account of karate instruction in the north of England.[62] In the latter instance, the Leeds Weekly News, a freesheet distributed in Leeds, West Yorkshire, ran a story about the claimants under the heading 'Give 'em the chop', under which the sub-heading read 'Doorstop salesmen flog dodgy karate lessons'. The piece was based on a parent's complaint about the claimant company. A local sports centre instructor was quoted as saying that the claimants were not recognised by the national governing body. The newspaper also contacted the national governing body for karate which confirmed complaints had been made about the claimants and, more damagingly, that the claimants were 'taking people's money and disappearing', 'ripping people off’ and 'giving the sport a bad name'. The claimants were contacted by the newspaper on one occasion but did not return the call. Without fully explaining why the subject matter of the story fell within the Reynolds privilege, Popplewell J held that the newspaper had acted in accordance with the standards of responsible journalism, although it appears that the limited circulation of the Leeds Weekly News and the urgency of informing readers in Leeds were both relevant to this conclusion.[63]

Sources and Neutral Reportage

On the separate matter of a journalist's sources, it might have been expected that the reliability of a publisher's sources would play a major role in determining whether the occasion of publication was privileged.[64] Yet, as Al Fagih v HH Saudi Research & Marketing (UK) Ltd showed in at least one set of circumstances, the fact that a story has been sourced from an informant with questionable motives will not deprive the publisher of the defence.[65] There, the defendant newspaper was sued in respect of a report containing an assertion made by a third party (the source) that the claimant had made allegations of a sexual nature about the mother of the third party. The claimant and the third party belonged to rival dissident groups in London who campaigned for change in Saudi Arabia. At first instance, Smith J ruled that the newspaper was unable to rely on the defence as it ought to have realised that its source had an axe to grind and was thus not dependable.[66] Reversing this decision, a majority of the Court of Appeal concluded that the publication was within the ambit of Reynolds privilege. Without taking sides, the Court observed that the newspaper had merely published the latest set of allegations to be made in an on-going dispute between rival opposition factions. There was no duty to verify each and every accusation made by the rival camps prior to publication. It was sufficient that the various developments in the dispute were being 'fairly and disinterestedly reported.'[67] Though not expressly stated, the judgment hinted at the emergence of a 'neutral reporting' doctrine. Simon Brown LJ stated that where the requirement of fair and disinterested reporting was met, the public was entitled to learn about the evolving dispute without having to wait for the publisher to make attempts to verify the information before endorsing one side.[68] Put another way, what is being suggested is that, unlike the repetition rule which constrains the defence of justification by not allowing the party who repeats the defamatory remark to claim that he or she was accurately stating what others have already published, the defence of qualified privilege was not so limited. What will be crucial is the tone in which the defamatory allegations originally made by others are aired by the defendant.[69]

The Standard(s) of Responsible Journalism

The latitude for investigative reporting in the first phase of post Reynolds litigation was illustrated more generally by a differently composed Court of Appeal in Loutchansky v Times Newspapers Ltd (No.2) where the Court rightly resisted the idea that, in respect of a particular story, the standards of 'responsible journalism' would admit of one correct view only as to whether to publish. In the first instance proceedings, Gray J had proposed that a useful cross-checking device to ascertain whether the duty existed was to ask whether the publisher would have been open to legitimate criticism if it had failed to publish the article in question. The implication of this approach would appear to be that, in circumstances where a publisher would not have attracted legitimate criticism for refusing to publish a story, a media outlet that did publish the story would not be able to claim the defence. The Court of Appeal was critical of this approach. Lord Phillips MR declared that it constituted

too stringent a test. There will undoubtedly be occasions when one newspaper would decide to publish and quite properly so, yet a second newspaper, no less properly would delay or abstain from publication. Not all journalism can be or should be expected to reach an identical view in every case. Responsible journalism will in certain circumstances permit equally of publication or of non-publication.[70]

Notwithstanding the resultant wide berth given to media organisations in their coverage of news stories, the early post Reynolds period also witnessed instances of (mainly tabloid) journalism that fell outside the boundaries of protected expression. Perhaps most notoriously, The Sun newspaper published details of alleged match fixing in professional football involving the former Liverpool goalkeeper, Bruce Grobelaar.[71] Rather than calling for an inquiry into the allegations, the tone of the pieces asserted the unequivocal guilt of Grobelaar. According to the newspaper, not only was the claimant 'a cheat who must never be allowed to play again', he had also 'fouled the field of dreams.' To make matters worse, The Sun's chief source was a former business partner of the claimant who had fallen out with the latter and was said to be in a vengeful mood. Although the gist of the claimant's denials was reported, the prejudgment of the claimant's guilt meant that the financial risk of such pieces had to be borne by the newspaper rather than the claimant.[72] Likewise, in James Gilbert Ltd v MGN Ltd where The Mirror newspaper suggested to its readers that the claimants' Indian sub-contractor employed child labour and that the claimants had failed to make good their promise to enquire into this matter, the tone of the journalism was not neutral.[73] Furthermore, the newspaper had information which ought to have cast doubt on its source and, worse still, had not put the specific charge made in the article to the claimants prior to publication.

VI. Post Reynolds Phase 2 - The Reassertion of Reputation Interests

Despite indications of a media-friendly approach in the early post Reynolds period, a less indulgent attitude towards political reporting in particular has become manifest of late. From a media perspective, three general features of the litigation in this period may be discerned. The first trend is a failure on the part of the courts (including juries) to appreciate the circumstances in which news-gathering occurs. It can be argued here that the courts display a degree of naiveté in the demands that they impose upon media organisations in what is, after all, a highly competitive and international market. Specifically, the suggestion that publishers ought to delay the moment of publication in order to obtain clearer verification of factual matters presents media organisations with a real dilemma. Do they seek additional evidence to make a story stand up under the justification or fair comment defences or, alternatively, should they self-censor and not run the story at all? In either event, the perishable nature of news material is paid scant regard with the result that the scope of the qualified privilege defence is undermined. The second troubling feature of the second phase concerns the malleability of the Nicholls' checklist. As will be seen below, certain factors have been interpreted in ways that benefit claimants only. The result is that, whilst lip-service is paid to the importance of media reporting in a democracy, the opportunities for investigative political journalism are being curtailed. A third aspect of the retreat from Phase 1 is the refusal to reduce the Reynolds defence to a test of 'responsible journalism.' These media-hostile characteristics of Phase 2 emerge from the respective rulings of the High Court and Court of Appeal in Jameel v Wall Street Europe and the High Court in Galloway v The Telegraph Group. Each will now be examined in detail.


In Jameel v Wall Street Europe an edition of the paper identified the claimants as being on a list of companies suspected of links with terrorist organisations supplied by the US government to the Saudi authorities.[74] In order to make a ruling on the availability of the qualified privilege defence, Eady J in the High Court set the jury an 'examination paper' whose questions related in the main to the anonymous sources relied on by the journalist and newspaper. Concerned lest, in the jury's eyes at least, these anonymous sources took on an '"aura of saintliness, wisdom or infallibility" when they are not permitted to take on human form',[75] Eady J allowed the claimants to put statements before the jury to rebut the newspaper's account of what happened.[76] The newspaper claimed to have based the story on five sources (A-E). Source A, a prominent Saudi businessman, was described by the defendants as a mere 'lead' and it was conceded that the defendants would not have acted responsibly had they published the story on his account alone. Sources B-E were claimed to provide the necessary firming up of A's assertions. The jury disagreed. Whilst accepting that the journalist had been told by Source A that the claimants' accounts were being monitored by the Saudi authorities after being included on a list supplied by the US Government, the jury did not accept that the other sources had confirmed A's story. Neither did the jury believe the journalist's statement that he had left a recorded message at the Jameel Group Offices on the day before publication. Instead, jury members preferred the evidence of a Jameel Group representative who, when contacted by the journalist, claimed to have asked the journalist to wait one day for the Group's comments.[77] Understandably, the cumulative impact of these answers posed in the judge's eyes some 'formidable, though not necessarily fatal obstacles' to reliance upon the Reynolds defence. The task confronting the defendants did, however, take on almost Herculean proportions when Eady J set out his general view that the defence should only be sustained 'after the closest and most rigorous scrutiny'. After all, in the case of factual imputations, the readers/viewers were unlikely to have the means of knowing whether the allegations about named individuals/companies were true or not. The allegations might ultimately prove to be false causing significant damage to the claimants' reputation and yet remain uncorrected where the defence succeeded.[78] Although it was true that the qualified privilege defence would fail where the presence of malice was shown, this was notoriously difficult for claimants to establish, especially where the publisher refused to disclose its sources. Moreover, certain newspapers might for commercial reasons be anxious to obtain a scoop. The 'sad reality' of national press conduct in such matters meant that little reliance could be placed upon the ethics of professional journalism to safeguard reporting standards. Specifically, a journalist's own notion of what counted as 'responsible journalism' had to give way in the final analysis to the court's assessment.[79] The High Court and the Court of Appeal agreed that 'responsible journalism' was too imprecise a term, carrying the erroneous implication that the Reynolds test was met if the journalist subjectively believed he/she had acted with due care and skill. The matter of the public interest in receiving the information was in any event not captured by the notion of responsible journalism. This focused attention on the subject matter of publication. On the facts of the case however, both Courts concurred that there had been a failure of 'responsible journalism' at the outset that rendered any consideration of whether the publication of names of suspected companies was in the public interest unnecessary.

Drawing on the formulation developed by Gray J in the High Court in Loutchansky v Times Newspapers,[80] Eady J declared that a useful crosschecking device to discover whether a media organisation was under a duty to publish would be to ask whether the publisher 'would have been open to legitimate criticism if it had failed to publish the article in question.' As was noted above, however, the Court of Appeal in Loutchansky deemed this test to be too stringent in its implication that, in circumstances where a publisher would not have attracted legitimate criticism for refusing to publish a story, a media outlet that did publish the story would not be able to claim the defence.

Applying the Nicholls checklist to the facts of the case, the judge's antipathy towards the newspaper's conduct became more apparent. Indeed, it is instructive to see how the criteria were read in ways that seemed only to benefit claimants or interpreted improperly as occurred with 'urgency'. Taking first the gravity of allegations, the assertion that the claimants were knowingly involved in handling funds destined to reach terrorists was bound to have a serious impact on reputation. The public too could expect greater accuracy where a serious charge was being made. Accordingly, the defendant was under a greater burden not simply to check the story before repeating it, but also a greater duty to give the subject of the story an opportunity to comment on the allegations. Of course, by way of comment, it can be observed that this interpretation permits both seriousness and lack of seriousness to weigh in the scales against the existence of a privileged occasion since, in cases where a comparatively trivial allegation is made, the less pressing will be the need to air it without conducting thorough checks. As to the nature of the information, it was accepted that the funding of terrorism was a matter of clear public interest in all of the jurisdictions where the newspaper was published. What mattered here, the judge stated, was the narrower question of whether the defendant ought to have asserted that the claimants were on a list of persons/companies whose financial transactions were thought to merit official scrutiny on terrorist-related grounds. Eady J declared that there was no public interest in being misinformed on this issue. However, since any assessment of whether the public was being misinformed in a particular case may well require taking account of matters not known at the time of publication, the judge's reasoning falls into the error of judging the allegation in hindsight, a practice expressly discouraged by Lord Nicholls in Reynolds. The whole point about the qualified privilege defence is that it exists to protect allegations, the truth or falsity of which is not known at the time of publication. For his part, Eady J considered that the story could in the event have been relayed to the public in terms that referred to 'prominent Saudi businesses' .[81] This would have satisfied the public interest in knowing that the Saudi authorities were actively co-operating in the fight against terror. Of course, Eady J's strategy might have raised an entirely new set of defamation risks unless the class size of 'prominent Saudi businesses' was sufficiently large as to prevent any one or more prominent businesses claiming that they had been singled out. On appeal, the Court of Appeal was prepared to accept that the story with names was more compelling than the story without names. However, before deciding whether to provide this level of detail, a newspaper acting responsibly ought in its view to have checked that the names supplied were correct. The number of sources turned to by the defendants suggested that they were aware of the importance of checking. This focused attention in turn upon the sources relied upon for corroboration. At first instance, Eady J noted Lord Nicholls' general observation that a newspaper's unwillingness to disclose its sources should not count against it. Assuming that none of the sources had an axe to grind and were not paid for their information,[82] Eady J stated that even if one had an impeccable source with direct knowledge, not everything that the source said would need to be published. In this case, however, both the High Court and Court of Appeal placed weight on the jury's finding that Sources B-E had not confirmed the defendants' assertion that the claimants were on a list of names being monitored for suspected links with terrorist groups. Regarding the status of the information, there had not been an 'investigation which commands respect', but rather the passing in confidential circumstances of a list of names supplied by the US Government to the Saudi authorities, where confidentiality was needed for on-going surveillance purposes. An obvious danger, however, in according too much significance to public authorities' intentions in this area is that their interpretation of the public interest will not always coincide with the public's legitimate interest in being informed.

Lord Nicholls' sixth criterion concerns the urgency of the matter. News being a perishable commodity, media outlets' (and their audiences) will have a legitimate interest in certain stories being published quickly. For Eady J, the less urgent a story is then the less forgiving the courts will be towards defects in journalistic-checking processes or a failure to afford the claimant an opportunity to comment on the allegations. He considered that accounts about terrorist funding had a less urgent quality in today's world 'since sadly it is a subject of "constant and continuing topicality'" ,[83] The commercial pressures on papers to obtain scoops was often the underlying reason behind speedy publication and this required careful scrutiny of newspapers' 'urgency' claims against 'the true entitlement of the general public' to read accurate and responsibly researched information.

In obvious disregard of Lord Nicholls' entreaty not to judge media conduct in retrospect, the judge stated that analysis of the events in the 24 hours after publication was helpful to settling the issue of urgency (in association with the opportunity to comment criterion). These events confirmed him (and the Court of Appeal) in the view that no compelling reason existed why the defendant did not postpone publication of the story for 24 hours, by which time the Saudi authorities had been able to deny the allegation of monitoring. Had this denial been included in the published article, the main thrust of the original story would have been blunted, possibly leading to the abandonment of its publication. Mr Jameel was also able to look into the allegation 'as best he could' in that 24 hour period and gave a 'cogent' though unspecified response. It followed that the article failed to contain the claimant's side of the story (Lord Nicholls' eighth criterion). By way of comment, it may be thought that this part of the judgment lacks an understanding of the real world in which journalists operate. The problem that journalists face in such scenarios is knowing whether a request from a claimant or their representative for an opportunity to check an allegation is made in good faith or whether it amounts to a stalling device. How journalists are supposed to make this judgment is not at all clear. A real danger for news organisations is that they will miss out on a breaking story which impacts not only in a commercial sense but also denies individual journalists and news organisations the professional recognition that would otherwise result from bringing such stories into the public domain.

If, for the reasons outlined above, the ruling in Jameel caused some considerable disquiet in the media, the outcome in Galloway v Telegraph Group Ltd will have come as less of a shock.[84] The newspaper claimed to have based four articles published on two consecutive days in late April 2003 about the Glasgow MP,[85] and well-known opponent of the Iraq war, on documents retrieved from damaged government buildings in Baghdad. One of the articles was a leader entitled 'Saddam's little helper' and asserted that the MP had received monies from the oil for food programme to the tune at least of £375,000 a year and, further, that part of this money had come from the Iraqi intelligence services. Thus, as the paper itself put it, Mr Galloway had committed treason and been paid from funds improperly diverted away from Iraqi civilians. The MP's denial of the allegations (via a telephone conversation with a journalist) was reported in the second article in the following terms:

Speaking from abroad yesterday, Mr Galloway was reduced to suggesting that the whole thing was a Daily Telegraph forgery, but the files could hardly be more specific... It is hard to think of a graver setback to the British anti-war movement. How would you feel if you were one of the many well-meaning peace protestors which had followed Mr Galloway's lead? What would your emotions be if you had given money to his Miriam Appeal, thinking that you were paying to treat a young Iraqi girl for leukaemia and wondering how your money had been used?

The defendants did not seek to prove the truth of these allegations before Eady J, relying instead on a Reynolds defence of qualified privilege. Obviously, the language used in the articles prevented the application of an Al-Fagih type neutral reporting doctrine where the reporting is 'fair and disinterested'. Here, the allegations were not only adopted by the newspaper, they were embraced 'with relish and fervour' and embellished.[86] In terms of the Nicholls' checklist, the tone of the articles was thus 'dramatic and condemnatory' and far removed from mere calls for an investigation. When assessed against other aspects of the checklist, the defendants' case looked weaker still. The sources of the information were described by the defendants as operatives within Saddam Hussein's regime and yet, regardless of whether these could be said to have axes to grind, they could not be deemed reliable. As to the fourth criterion, the defendants admitted having taken no steps to verify the information, largely it seems because they considered that Galloway's guilt could only be definitively established by using powers of investigation not possessed by the newspaper. The documents lacked the status that would attach to an official report in the UK and published after a full enquiry.[87] The urgency of the public being told of the allegations was also said by the judge not to be so great as to go to press without first affording the claimant a proper opportunity to comment on the allegations. If it could be made to stand up, the story of the claimant's conduct would not go stale since it was 'of interest at any time.'[88] It was not as perishable as other news stories. Accordingly, the defendants could have afforded the claimant a proper opportunity to respond to the unearthed documents and/or made some effort to verify the allegations. On the latter point, the business associate of the claimant, Mr Zureikat, named in the Daily Telegraph as Mr Galloway's 'go-between' was an obvious person from whom to seek verification.[89] The fact that Channel 4 did interview Mr Zureikat on 22 April lent weight to this suggestion. The position of the Daily Telegraph was further weakened by the fact that Mr Galloway had not been given a sight of the Baghdad documents before his telephone interview. Crucially, he had not been confronted with the central allegation that he had received large sums of money from Saddam Hussein even though the newspaper intended to publish this claim in the very near future. The conversation had centred instead on separate allegations concerning the Miriam Appeal. It followed that the published articles did not contain the 'gist' of the claimant's response to the central allegation. Drawing upon the above answers, Eady J returned to the underlying issue in Reynolds' privilege cases - namely, whether the defendants had shown that they were under a social or moral duty to publish the articles in question to the world at large and, further, was there a corresponding interest on the part of the public in receiving the material contained within them? Ruling that the newspaper was not under a duty to publish, Eady J attached considerable importance to the fact that, during the telephone discussion between Mr Galloway and the journalist, the latter did not put its central allegation about the claimant being in the pay of Saddam Hussein to Mr Galloway.

VII. Conclusion — Returning English Common Law to its Roots

As has been pointed out elsewhere,[90] English common law's recognition of the especial importance of political expression to the electorate predates the US Supreme Court's 'actual malice' ruling in Sullivan v New York Times by almost one hundred years. In Wason v Walter, Cockburn CJ presciently declared that privilege attached to media discussion of political matters, noting that there was 'no subject matter in which the public have deeper interest than all that which relates to the conduct of public servants of the state.'[91] The failure in Reynolds to accord a generic privilege to political discussion cannot be reconciled with Wason, let alone the preferential position that political expression enjoys in European human rights jurisprudence. Looking to the immediate future, the latter will, in all likelihood, continue to prompt critical reflection about the state of domestic law. In 2001, the Strasbourg Court ruled in Thoma v Luxembourg that the punishment of a radio journalist for disseminating and then failing to distance himself from defamatory remarks made by another about the conduct of 63 civil servants violated Article 10.[92] To insist upon formal distancing was not reconcilable with the media's role of informing the public about current events, opinions and ideas. The immediate domestic impact of Thoma has been to provoke discussion about the compatibility of the repetition rule where the defences of justification and qualified privilege are pleaded.[93] For the purposes of qualified privilege, Reynolds itself would indicate that the circumstances surrounding the repetition are all important and that, mere failure to distance, would not on its own, suffice to rule out reliance upon the defence.[94] In time, Thoma may force consideration of a 'neutral reportage' variant of Reynolds privilege whereby protection might be extended to media organisations where, in accurate and neutral terms, they report newsworthy statements on public matters/political figures from persons with knowledge of those matters/ figures. Protection would not be lost on account of a failure to give the claimant's gist of the story, as usually happens under Reynolds. Though at present unlikely, such a development could conceivably occur within the methodology set down by Reynolds. A yet more radical (and hence even less likely) reform would re-establish the 'reach' and 'effects' stages of privilege. One purpose of this reform would be to recognise the fundamental importance of political expression to modern democratic society. After a judge has determined whether an occasion is properly 'political expression' and within the reach of privilege, it would fall to lay jury members to decide whether an occasion has been abused. Concerns about the vulnerability of political figures' reputations might be met by putting the onus on media organisations to demonstrate the propriety of their journalists' conduct and editorial processes to the jury's satisfaction. In this way the boundaries of 'responsible journalism' would reflect more widely-held contemporary attitudes about media conduct/misconduct. There is, after all, something inherently attractive about letting the people decide how much investigative journalism in the field of political reporting is required in a democracy. Nonetheless, a significant downside of such a reform should also be acknowledged. The lack of precedent value to juries' 'abuse of privilege' verdicts and the likely inconsistency between jury verdicts might soon induce their own 'chill' on political reporting.

[*] Senior Lecturer in Law & Convenor, Human Rights Research Unit, School of Law, Leeds University.

[1] Dicey famously remarked in 1885 that freedom of discussion in England consisted of 'little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think is expedient': An Introduction to the Study of the Law of the Constitution (10th ed, 1959) 246.

[2] See, for an overview and analysis of defamation law and practice in Australia and England, A Kenyon, 'Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice' [2004] MelbULawRw 13; (2004) 28 Melbourne University Law Review 406. For an empirical study of New Zealand defamation law, see U Cheer, 'Myths and Realities about the chilling effect: The New Zealand media's experience of defamation law' (2005) 13 Torts Law Journal 259.

[3] Consider Weir's comment that defamation is the 'oddest' of torts since it allowed the plaintiff to 'get damages (swingeing damages!) for a statement made to others without showing that the statement was untrue, without showing that the statement did him the slightest harm, and without showing that the defendant was wrong to make it': Casebook on Tort (8th ed, 1996) 525, cited by Lord Steyn in Reynolds v Times Newspapers Ltd [1999] UKHL 45; [1999] 4 All ER 609, 631. Lord Steyn himself went on to declare that '(t)he 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.' [631].

[4] See Lord Cockburn's remarks in Campbell v Spottiswode [1863] EngR 405; (1863) 3 B & S 769, 777: 'It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction a tax upon them, destructive of their honour and character, and made without any foundation.' These comments were cited by the Law Commission in Defaming Politicians: A Response to Lange v Atkinson, Report No 64 (2000) [9].

[5] 6 As is well known, the US Supreme Court in Sullivan[1920] USSC 192; , 254 US 376 (1964) (as subsequently expanded by cases such as Time Inc v Hill, [1967] USSC 11; 385 US 374 (1969)) requires plaintiffs who fall within the definition of public figures (a broader category than politicians) to show that the defendant publisher was motivated by actual malice or reckless disregard for the truth. The difficulties placed in the way of US plaintiffs are somewhat mitigated by the fact that pre-trial inquiries into both the editorial processes and publisher's sources are permitted -see Herbert v Lando, 441 US 154 (1979).

[7] 8 The Court of Appeal ruling is to be found at [1998] 3 NZLR 424 and that of the Privy Council at [2000] 1 NZLR 257. See N Barber & A Young, 'Political Libel in New Zealand' (2001) 117 Law Quarterly Review 175; Law Commission, Defaming Politicians: A Response to Lange v Atkinson, Preliminary Paper No 33 (1998). The Commission was concerned that the decision deprived politicians of a means of defending their reputations that remained open to others. See also the papers from the Symposium on Defamation and Political Expression published in [1999] UKHL 45; [2000] New Zealand Law Review 384. [1999] 3 WLR 1010. [2000] 1 NZLR 257, 262.

[9] Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 399.

[10] Ibid 400.

[11] Ibid.

[12] See Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 - no departure from the rule unless special circumstances exist. The latter did not include attempts by plaintiffs to establish malice for the purposes of defeating a claim of qualified privilege.

[13] E Barendt, L Lustgarten, K Norrie & H Stephenson, Libel and the Media - The Chilling Effect (1997) 191.

[14] The point is made by May LJ in GKR Karate (UK) Ltd v Yorkshire Post [2000] EWCA Civ 420; [2000] 1 WLR 2571, 2580 and endorsed by Lord Phillips MR in Loutchansky v Times Newspapers (No 2) [2001] EWCA Civ 1805; [2002] 2 WLR 640.

[15] Loutchansky v Times Newspapers (No 2) [2001] EWCA Civ 1805; [2002] 2 WLR 640.

[16] The editors of Gatley on Libel and Slander (10th edn, 2004) [14.88] have commented that

'[i]n most cases the reliability of the source from which the published material was obtained will be a major factor in deciding whether there is privilege.'

[17] Kenyon, above n 2, 426.

[18] In Galloway v The Telegraph Group Ltd [2004] EWHC 2786, [24], Eady J referred to the 'extensive' role of the judge in cases of publication by the media to the world at large.

[19] [1999] UKHL 45; [1999] 3 WLR 1010, 1024 (Lord Nicholls), 1033 (Lord Steyn), 1041-2 (Lord Cooke).

[20] Ibid 1024 (Lord Nicholls), 1041-2 (Lord Cooke).

[21] Ibid 1042 (Lord Cooke).

[22] Lord Nicholls also referred to the duty/interest test as the 'right to know test'.

[23] [1999] UKHL 45; [1999] 3 WLR 1010, 1027.

[24] Ibid.

[25] Ibid 1026.

[26] Ibid 1045.

[27] [1976] ECHR 5; (1979-80) 1 EHRR 737. For some interesting insights into the dynamics of Article 10 jurisprudence see M Oetheimer, L'Harmonisation de la Liberté d'Expression en Europe (2001).

[28] [1986] ECHR 7; (1986) 8 EHRR 407, 418.

[29] (1991) 19 EHRR 389, 421.

[30] [1997] ECHR 38; (1997) 25 EHRR 357.

[31] [1979] ECHR 1; (1979) 2 EHRR 245, 280.

[32] [1986] ECHR 7; (1986) 8 EHRR 407, [41].

[33] [1997] ECHR 38; (1997) 25 EHRR 357, [29]; Lingens v Austria [1986] ECHR 7; (1986) 8 EHRR 407, 419.

[34] [1992] ECHR 48; (1992) 14 EHRR 445, [43]. See also De Haes & Gisjels v Belgium [1997] ECHR 7; (1997) 25 EHRR 1.

[35] See further I Cram, 'The Vital Freedom: The Treatment of Expression Interests in the European Court of Human Rights and the Tribunal Constitucional’ in F Segado (ed) 25 Years of the Spanish Constitution (2003) 1306-1328.

[36] [1986] ECHR 7; (1986) 8 EHRR 407.

[37] Ibid [41]. See also Worm v Austria [1997] ECHR 52; (1998) 25 EHRR 454; News Verlags GmbH v Austria [2000] ECHR 5; (2001) 31 EHRR 8.

[38] Markt Intern Verlag and Beerman v Germany [1989] ECHR 21; (1990) 12 EHRR 161. The boundary between commercial and non-commercial expression was discussed in Barthold v Germany [1985] ECHR 3; (1985) 7 EHRR 383.

[39] See, among others, Otto-Preminger-Institut v Austria [1994] ECHR 26; (1995) 19 EHRR 34; Wingrove v UK [1996] ECHR 60; (1997) 24 EHRR 1; Muller v Switzerland (1991) 13 EHRR 212. For more extensive discussion see I Cram, Contested Words (2005).

[40] [1994] ECHR 8; (1994) 18 EHRR 1.

[41] [1994] ECHR 21; (1995) 19 EHRR 64.

[42] Jersild v Denmark [1994] ECHR 33; (1995) 19 EHRR 1; News Verlags GmbH v Austria [2000] ECHR 5; (2001) 31 EHRR 8.

[43] Bergens Tidende v Norway [2000] ECHR 190; (2001) 31 EHRR 16.

[44] Lopes Gomes Da Silva v Portugal (2002) 34 EHRR 56. See further below.

[45] [1995] ECHR 12_2; (1996) 21 EHRR 1.

[46] (2003) 36 EHRR 21. The case also has implications for the developing doctrine of neutral reporting which are touched on in the conclusion to this article.

[47] For practitioner responses see K Schilling, 'The Americanisation of English Libel Law' (2000) 11 Entertainment Law Review 48; K Rimell, 'A New Public Interest Defence for the Media? - The House of Lords' decision in Reynolds v Times Newspapers Ltd' (2000) 11 Entertainment Law Review 36.

[48] F A Trindade, 'Defaming Politicians - The English Approach' (1999) 115 Law Quarterly Review 175, 182-3. Trindade was writing after the Court of Appeal ruling but before the judgment of the House of Lords. See also K Williams, 'Defaming Politicians - The Not So Common Law' (2000) 63 Modern Law Review 748. In endorsing the newly flexible nature of qualified privilege, these reactions may be thought to have neglected the self-censoring impact of Reynolds.

[49] E Barendt et al, above n 13, 186 where reference is made to the 'lottery' of defamation law.

[50] Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 395.

[51] See the remarks by Nourse LJ in Kirby-Harris v Baxter [1995] EMLR 516 and Beldam LJ in Kiam v Neil (No.2) [1996] EMLR 493.

[52] I Loveland, 'A New Legal Landscape? Libel Law and Freedom of Political Expression in the United Kingdom' [2000] European Human Rights Law Review 476, 491-2 and see also more generally, I Loveland, Political Libels: a Comparative Study (2000).

[53] [1997] HCA 25; (1997) 145 ALR 96.

[54] [1994] 4 All ER 609.

[55] Kenyon's recent empirical survey of attitudes among English defamation practitioners revealed that a 'major area of criticism was its (Reynolds) uncertainty and unpredictability': Kenyon, above n 2, 423. One experienced barrister is quoted as saying that 'I think the problem with Reynolds in practice is that it is a "sniff test". Does it have a bad smell about it or does the judge feel warm about it?'

[56] The editors of Gatley on Libel and Slander have stated that it is 'unlikely that the decision in one case will provide the solution in another.' See above n 16, [14.86].

[57] The editors of McNae's Essential Law for Journalists (17th ed, 2003) 274 recorded their opinion that the English courts' interpretation of Reynolds 'had strengthened the protection afforded by the defence of responsible journalism'.

[58] [2003] EWHC 2322 (High Court); [2005] HRLR 10 (CA).

[59] [2004] EWHC 1538; [2005] EMLR 7.

[60] [2003] EWHC 2322.

[61] [2001] EWCA Civ 1805; [2002] 2 WLR 640.

[62] [2000] EWHC QB 180. See also Lukowiak v Unidad Editorial SA [2001] EMLR 46.

[63] The tone of the piece was also said not to be excessive - a reading which, given the heading, sub heading and accusations contained in the article, is somewhat hard to fathom.

[64] See above n 16.

[65] [2002] EMLR 13.

[66] The claimant had conceded that details of the fractured opposition movement were of interest to the London Saudi community.

[67] [2002] EMLR 13, 52 (Simon Brown LJ).

[68] Cf English v Hastie Publishing Ltd (unreported, Queens Bench Division, 31 January 2002) where claims for a more generally applicable privilege of neutral reporting were rejected in the High Court.

[69] Kenyon, above n 2, 413.

[70] [2001] EWCA Civ 1805; [2002] 1 All ER 652, 667. See also I Loveland, 'The Ongoing Evolution of Reynolds Privilege in Domestic Libel Law' (2003) 14 Entertainment Law Review 178; J McDermott, 'The media's right to be wrong when reporting matters of public interest' (2002) 7 Communications Law 46.

[71] Grobelaar v Newsgroup Newspapers Ltd [2001] EWCA Civ 33; [2001] EMLR 18.

[72] For a non-tabloid example see Baldwin v Rusbridger [2001] 1 All ER 106. After losing a libel action against the claimant about his involvement in religious cults (having unsuccessfully pleaded justification), The Guardian then published an account of proceedings in which it defended its journalism as responsible and careful. The High Court held that this account was capable of suggesting that the claimant had engaged in the conduct wrongly alleged in the first article and that reliance upon qualified privilege in these circumstances was misplaced.

[73] [2000] EMLR 680.

[74] [2003] EWHC 2322 and see I Cram, 'Reducing uncertainty in libel law after Reynolds v Times Newspapers? Jameel and the unfolding defence of qualified privilege' [2004] 15 Entertainment Law Review 147.

[75] Jameel v Wall Street Journal Europe SPRL [2003] EWHC 2322, [19]. The trial judge also rejected the defendants' separate argument that the common law presumption of damage (applied once a libellous publication is established) needed to be modified to render English law ECHR-compliant. See Jameel v Wall Street Journal Europe SPRL [2003] EWHC 2945; [2004] 2 All ER 92.

[76] For limits on the use of this tactic see GKR Karate v Yorkshire Post [2000] EWCA Civ 420; [2000] 1 WLR 2571.

[77] This was denied by the journalist.

[78] This can be contrasted with fair comment where the publication complained of would have an express/implicit factual content and readers would be able to make up their own mind on whether they agreed or not with the defamatory comment.

[79] See also Loutchansky v Times Newspapers Ltd (No.2) [2001] EWCA Civ 1805; [2002] 1 All ER 652, 667; Loveland, above n 70, 178.

[80] [2001] EMLR 898.

[81] Ibid [65].

[82] At this point, the judge said he was putting to one side the jury's rejection of the defendant's case based on Sources B-E.

[83] As the background circumstances and personnel/institutions involved in the funding of terrorist incidents may well vary from one case to another, it is by no means clear that the regular occurrence of terrorist funding made its reporting any less newsworthy.

[84] [2004] EWHC 2786; (2004) 148 SJLB 1436.

[85] After being expelled from the Labour Party, Mr Galloway founded a new political party RESPECT. He was elected to Parliament in May 2005 to serve as the member for Bethnal & Bow in the East End of London.

[86] [2004] EWHC 159.

[87] This seems to set the bar very high indeed. It is difficult to conceive how any document to emerge from Iraq during this chaotic period might acquire a status equivalent to an official report published after full enquiry in the UK

[88] [2004] EWHC 2786, [163].

[89] Mr Zureikat was described in one of the Telegraph articles as a person 'with a family history of loyalty to Saddam Hussein's Ba'ath Party, according to his Iraqi intelligence profile.'

[90] Loveland, above n 70, 181.

[91] (1868) LR 4 QB 73, 90.

[92] (2003) 36 EHRR 21.

[93] Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38. The repetition rule is stated in Stern v Piper [1996] EWCA Civ 1290; [1997] QB 123.

[94] See to this effect the remarks of Simon Brown LJ in Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38.

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