Defamation - Case Law

Defamation - Privilege - Qualified - Newspaper publication concerning public figure engaged in political events - Whether defence of qualified privilege available - Whether privilege attaching to publication

The plaintiff, a prominent public figure in Ireland, began proceedings for defamation against the defendants, the publishers of an article contained in the British mainland edition of a national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff's resignation as Taoiseach, and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Dáil by suppressing crucial information about the Irish Attorney-General, whose appointment to the Presidency of the High Court he had sought to promote, and had similarly misled his cabinet colleagues by withholding the information and by lying as to when he had obtained it. The defendants pleaded, inter alia, the defence of qualified privilege at common law on the ground that, consonant with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,fn1 the public interest in the general publication of information and discussion relating to political issues and the public conduct of elected politicians engaged in them justified such protection. The judge ruled that the defence was not available. The jury returned a verdict in the plaintiff's favour and he was awarded the sum of 1p by way of damages.

Held, (1) dismissing the cross-appeal, that the common welfare of a modern plural democracy was best served by ample dissemination of information to the public and vigorous discussion of matters relating to the public life of the community and to those who participated in it; that, in maintaining a proper balance between freedom of speech and a public figure's right to his reputation and consistently with article 10, the defence of common law qualified privilege was available where the defendant had a legal, moral or social duty to publish the information to those, including the general public, who had a corresponding interest in receiving it, such tests to be more readily satisfied than formerly, and where the nature, status and source of the information and the circumstances of its publication were such that it should be protected in the absence of malice; that since the task of the press in informing the public on a matter which was of general concern in Great Britain constituted such a duty and since there was a general public interest in receiving that information, the duty and interest tests were satisfied, but that, since the nature, status and source of the information and the circumstances of its publication were not such, on the facts, as to justify its protection, the defence was not available (post, pp. 899E-G, 900G, 905G, 906A, 909B-C, 910A-B, 911A).

By a writ and statement of claim dated 18 August 1995 the plaintiff, Albert Reynolds, claimed:

(1) damages for defamation against the defendants, Times Newspapers Ltd, Alan Ruddock, John Burns and John Witherow, in respect of an article written by the second and third defendants and published by the defendants in the issue of The Sunday Times" for 20 November 1994 and

(2) an injunction restraining further publication of the same or similar words. The plaintiff asserted that in the context of the article as a whole the words complained of in their natural and ordinary meaning meant and were understood to mean that (1) in promoting the appointment of the Irish Attorney-General to the Presidency of the High Court of Ireland the plaintiff had deliberately and dishonestly misled the Dáil by suppressing information he possessed which would render the promotion out of the question; (2) by withholding the information from his coalition cabinet colleagues the plaintiff had deliberately and dishonestly misled them and (3) the plaintiff had lied to those colleagues about when the information came into his possession.

By their amended defence re-served on 4 November 1996 the defendants (1) denied that the words bore or were capable of bearing such meanings, alternatively (2) claimed that the words were published on an occasion of qualified privilege, in particular since (i) they were published in the course of public discussion and political debate concerning the views and conduct of the plaintiff and of other public officers of the Irish government in respect of the discharge of his and their public functions and in particular in the context of the collapse of the coalition government and the plaintiff's resignation as Taoiseach; (ii) the words related wholly to the plaintiff's conduct in his public roles and/or as an elected representative and leader of Fianna Fáil party and to his suitability for such roles; (iii) the reasons for the collapse of the coalition were of considerable importance and interest in the United Kingdom because of the critical stage of the peace process in Northern Ireland; (iv) the words correctly reported the stated reasons for the break up of the coalition, as stated, inter alia, by the spokesman of Mr Dick Spring, the leader of the Labour party, and accordingly (v) the defendants were under a duty, had a legitimate interest and were entitled as publishers, journalists and editor of "The Sunday Times," to communicate the information and opinions contained in the words complained of to their readers who had a legitimate interest in receiving them; alternatively the words were true. By his reply the plaintiff asserted that the defendants had been actuated by express malice.

During the course of the trial, John Burns gave evidence from which it was apparent that he bore no responsibility for the article and the judge accordingly directed that the action be discontinued against him. On 19 November 1996 the jury found in the plaintiff's favour but declined to make any award by way of damages. By his order the judge substituted an award in the sum of 1p, ruled that the defence of qualified privilege was not available to the defendants, and dismissed their application for costs up to the date of a payment into court, refusing them leave to appeal from that part of his order.

By a notice of appeal dated 20 December 1996 the plaintiff appealed on the grounds, inter alia, that (1) the summing up, which required particular care and thoroughness because the facts were complex, the evidence interrupted by illness and an interval of seven days occurring between the plaintiff's closing address and the retirement of the jury, was so confusing and unstructured, with large tracts of evidence unsummarised, that it was of no material assistance to the jury; (2) the summing up might have misled the jury into thinking that the words complained of could be defended as fair comment; (3) when purporting to summarise key factual issues the judge showed a fundamental misunderstanding of them; (4) in purporting to sum up, at the plaintiff's request, crucial factual issues the judge gave confusing directions; (5) the judge mistakenly transposed plaintiff and defendants in referring to issues of fact and to the submissions such that the transpositions were particularly prejudicial to the plaintiff; (6) the judge failed to sum up the plaintiff's factual case on malice; (7) the judge gave a seriously inadequate direction of the question of damages; and that in all the circumstances his misdirections and failure to put the plaintiff's case fairly to the jury resulted in justice neither being done nor seen to be done.

By notices of appeal, dated 23 December 1996 and 31 January 1997, and pursuant to leave granted by McCowan L.J., the defendants cross-appealed on the grounds, inter alia, that the judge (1) erred in law in holding that the defence of qualified privilege at common law was not available to them on the facts found by the jury; (2) misunderstood the meaning and relevance of the chilling effect" of libel actions, referred to in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, as inhibiting freedom of speech; (3) erred in considering that the defence of qualified privilege failed where the matters published did not constitute an urgent warning to the public about an imminent danger; (4) failed to have regard to the constitutional importance of the public interest considerations underlying the defence; (5) failed to recognise the reciprocity of duty and interest between the media and the public where the defamatory material was published in the course of public discussion and debate about political matters; (6) failed to have regard to the principle of freedom of speech contained in article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) which accorded with the common law principle of free speech; and (7) failed to have regard to the political nature and content of the publication complained of; (8) erred in law in ruling that the jury were not entitled to award the plaintiff no damages and in substituting a nominal award; (9) failed to direct himself on the established principles that costs should be awarded to the party which had in substance and reality won the action; and (10) erred in holding that the plaintiff had obtained something of value and was therefore entitled to his costs.

The general principle -- analysis and conclusions

We do not for an instant doubt that the common convenience and welfare of a modern plural democracy such as ours are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community. By that we mean matters relating to the public life of the community and those who take part in it, including within the expression 'public life' activities such as the conduct of government and political life, elections (subject to s 10 of the 1952 Act, so long as it remains in force) and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure. Recognition that the common convenience and welfare of society are best served in this way is a modern democratic imperative which the law must accept. In differing ways and to somewhat differing extents the law has recognised this imperative, in the United States, Australia, New Zealand and elsewhere, as also in the jurisprudence of the European Court of Human Rights. It would be strange if the law in this country -- the land of Milton, Paine and Mill -- were to deny this recognition, and the history recited above in our judgment makes plain that it does not.

As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. The cases cited show acceptance of such a duty, even where publication is by a newspaper to the public at large. In modern conditions what we have called the duty test should, in our view, be rather more readily held to be satisfied.

Corresponding to the duty of the media to inform is the interest of the public to receive information. Article 10 of the convention lays down a right to receive information. We have no doubt that the public also have an interest to receive information on matters of public interest to the community (as opposed, of course, to information about matters in which the public may happen to be interested). The cases have accepted that the public generally may have an interest to receive information published in a newspaper, so satisfying that we have called the interest test. In modern conditions the interest test should also, in our view, be rather more readily held to be satisfied.

It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.

The view of the law which Lord Lester has urged upon us is in our view both too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion. For understandable forensic reasons, Lord Lester framed his submission in terms wide enough to cover this case but no wider. That does not, however, absolve us from the need to state the law in terms which are clear and workable and serve the common convenience and welfare of society. If a businessman were said to have corrupted a serving politician, Lord Lester's 'political speech' qualified privilege would, in the absence of malice, protect the publisher in a suit by the politician. But what of a suit by the businessman? If, as we understood him to accept, the same privilege would apply in a suit by the businessman, it would seem unlikely that the privilege could be confined to political speech. But if the privilege could be and were so confined, we question whether the common convenience and welfare of society would be thereby served: there are, after all, many matters which affect the public interest and the health of society much more profoundly than the small change of political controversy.

It is also plain that Lord Lester's rule would emasculate, in the area of political speech, the defence of fair comment. While, as we have shown, this defence permits the expression of very strong opinions, so long as they are honest, it does require (subject to s 6 of the 1952 Act) that the facts commented upon be true. If Lord Lester's rule were adopted, the defence of fair comment would be unnecessary in political cases, as Cantley J pointed out in Littler's case; the important safeguard of truth would effectively disappear.

In his reply Lord Lester sought to demonstrate that his rule would have the positive virtue of discouraging irresponsible journalism by imposing a salutary discipline on the editor and journalists involved, since, absent a plea of justification, the focus of a trial would shift from the conduct of the plaintiff to the conduct of the newspaper, which in answer to a plea of malice would need to vindicate the conscientiousness of its investigation and of its conduct leading up to the publication. In our view, application of the circumstantial test would exert the same beneficial influence; and we remind ourselves that the law of defamation is concerned primarily to maintain the proper balance, not to regulate the practice of journalism.

For all these reasons we reject Lord Lester's proposed rule and adhere to the existing tests of qualified privilege, applied in the way we have described.

XX

The application of these principles to the present case

It is well settled that the question whether the occasion of publication is protected by qualified privilege is a question of law to be decided by the judge, but before he can reach that decision it may be necessary for the jury to make findings on any issues of fact in dispute upon which the answer to the question depends (Duncan and Neill para 14.07, Hebditch v MacIlwaine [1894] 2 QB 54 at 58, [1891-4] All ER Rep 444 at 445 per Lord Esher MR and Adam v Ward [1917] AC 309 at 318, [1916-17] All ER Rep 157 at 160 per Lord Finlay LC).

As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr Spring's stated reasons for withdrawing from the government. This question was answered in the defendants' favour, and is not the subject matter of the plaintiff's appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.

The circumstances in which Mr Reynolds' government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied:

1. The allegation that Mr Reynolds had lied was attributed in the article to an unidentified colleague of Mr Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr Finlay, who was not a deputy but was described in the Dail as 'Mr Spring's programme manager'. There was no evidence before the jury that Mr Spring authorised Mr Finlay to accuse Mr Reynolds of lying, and Mr Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr Reynolds' leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation.

2. Mr Spring did not in terms accuse Mr Reynolds of lying to the Dail. He did, in his speech on Wednesday, 16 November, strongly criticise Mr Reynolds for failing to disclose what he had known on Tuesday, 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr Reynolds' part.

3. The defendants wholly failed to record Mr Reynolds' own account of his conduct, as described by him when addressing the Dail in the Wednesday debate.

4. The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dail so as to obtain his observations on it.

5. The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, as conveyed to Irish readers in the 'House of Cards' article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.

Given the nature, status and source of the defendants' information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.