|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
Privilege and publication to the world at large
Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney (1863) 4 F. & F. 13, 19, Cockburn C.J. approved an earlier statement by Lord Tenterden C.J. that 'a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know'. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.
This issue has arisen several times in the context of newspapers discharging their important function of reporting matters of public importance. Two instances will suffice, together with one instance of the publication in book form of information originating with the publisher. Purcell v. Sowler (1877) 2 C.P.D. 215 concerned a newspaper report of a public meeting of poor-law guardians. During the meeting the medical officer of the workhouse at Knutsford was said to have neglected to attend pauper patients when sent for. In deciding that publication of this allegation was not privileged, the Court of Appeal looked beyond the subject-matter. The court held that the administration of the poor-law was a matter of national concern, but there was no duty to report charges made in the absence of the medical officer and without his having had any opportunity to meet them. The meeting was a privileged occasion so far as the speaker was concerned, but publication in the press was not. In Allbutt v. General Council of Medical Education and Registration (1889) 23 Q.B.D. 400, 410, the defendants published a book containing minutes of a meeting of the council recording that the plaintiff's name had been removed from the medical register for infamous professional conduct. This was after an inquiry at which the plaintiff had been represented by counsel. The Court of Appeal held that the publication was privileged. Giving the judgment of the court, Lopes L.J. expressly had regard to the nature of the tribunal, the character of the report, the interests of the public in the proceedings of the council and the duty of the council towards the public. Perera v. Peiris  A.C. 1, 21, was an appeal to the Privy Council from the Supreme Court of Ceylon. The 'Ceylon Daily News' had published extracts from a report of the Bribery Commission which was critical of Dr. Perera's lack of frankness in his evidence. The Judicial Committee upheld a claim to qualified privilege. In the light of the origin and contents of the report and its relevance to the affairs of Ceylon, the due administration of the affairs of Ceylon required that the report should receive the widest publicity.
The courts have recognised that the status and activities of certain bodies are such that members of the public are entitled to know of their proceedings. Then privilege derives from the subject-matter alone. Fair and accurate reports of the proceedings of these organisations are privileged. A leading instance is Wason v. Walter (1868) L.R. 4 Q.B. 73, 89, concerning newspaper reports of debates in Parliament. The Court of Queen's Bench held, by analogy with reports of judicial proceedings, that fair and accurate reports of parliamentary proceedings were privileged. Cockburn C.J. observed that it was of paramount public and national importance that the proceedings of either House of Parliament should be communicated to the public 'who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends'.
In Webb v. Times Publishing Co. Ltd.  2 Q.B. 535 the defendants attempted to obtain similar blanket (or 'generic') protection for another category of subject-matter: reports of foreign judicial proceedings. There 'The Times' newspaper had published a report of the criminal trial in Switzerland of a British subject. Pearson J. rejected this approach, but he upheld the claim to privilege by applying the general principle enunciated in the line of authorities exemplified by Cox v. Feeney 4 F. & F. 13, Allbutt v. General Council of Medical Education and Registration 23 Q.B.D. 400 and Perera v. Peiris  A.C. 1.
Similarly, in Blackshaw v. Lord  1 Q.B. 1, 6 the Court of Appeal rejected a claim to generic protection for a widely stated category: 'fair information on a matter of public interest'. A claim to privilege must be more precisely focused. In order to be privileged publication must be in the public interest. Whether a publication is in the public interest or, in the conventional phraseology, whether there is a duty to publish to the intended recipients, there the readers of the 'Daily Telegraph', depends upon the circumstances, including the nature of the matter published and its source or status.
The decision of the Court of Appeal in Braddock v. Bevins  1 K.B. 580, on which the appellant newspaper placed some reliance, is consistent with this approach. The court held that Mr. Bevins' election address at a local election was the subject of qualified privilege. In reaching its conclusion the court applied the classic requirements necessary to confer qualified privilege: see the judgment of Lord Greene M.R., at pp. 589-590. This decision was reversed by section 10 of the Defamation Act 1952:
Parliament seems to have taken the view that the defence of comment on a matter of public interest provided sufficient protection for election addresses. Whether this statutory provision can withstand scrutiny under the Human Rights Act 1998 is not a matter to be pursued on this appeal. Suffice to say, Braddock v. Bevins did not place election communications into a special category.
In Derbyshire County Council v. Times Newspapers Ltd.  A.C. 534 this House held that it was contrary to the public interest for organs of central or local government to have any right at common law to maintain an action for defamation. This is an instance, in the field of political discussion, of the court's concern to remove all unnecessary fetters on freedom of speech. Beyond that, this decision does not assist in the present appeal.
In its valuable and forward-looking analysis of the common law the Court of Appeal in the present case highlighted that in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question ('the circumstantial test') separate from, and additional to, the conventional duty-interest questions: see  3 W.L.R. 862, 899. With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement.
Many, if not all, of the common law categories of case where reports of proceedings attract privilege are now the subject of statutory privilege. Successive statutes have extended the categories. The Law of Libel Amendment Act 1888 granted qualified privilege to fair and accurate reports published in newspapers of a limited range of public meetings. In 1948 the Report of the Committee on the Law of Defamation (Cmd. 7536), chaired by Lord Porter, recommended that the classes of reports subject to qualified privilege should be extended, and that they should be re-classified into two categories: those where statements were privileged without explanation or contradiction, and those where privilege was conditional on publication on request of a letter or statement by way of explanation or contradiction. The Defamation Act 1952 gave effect to these recommendations. Among the publications having qualified privilege without explanation or contradiction was a fair and accurate report of proceedings in public of the Irish legislature. Until abandoned, this was one of the defendants' pleaded defences in the present proceedings.
In 1975 the committee on defamation chaired by Faulks J. considered a proposal that a statutory qualified privilege should be created to protect statements made, whether in a newspaper or elsewhere, if the matter was of public interest and the publisher believed the statement of facts was true and he had taken reasonable care in relation to such facts. In its report (Cmnd. 5909) the committee did not accept this proposal. The committee considered this would seriously alter the balance of the law of defamation against a defamed plaintiff. The committee noted that the common law defence of qualified privilege was available to the media as much as anyone else, and referred to the Cox v. Feeney line of cases.
In 1991 the Supreme Court Procedure Committee, chaired by Neill L.J., in its Report on Practice and Procedure in Defamation considered that fair and accurate coverage by the British media of statements and proceedings abroad ought to be protected by qualified privilege in circumstances which would attract privilege if comparable statements or proceedings occurred in this country. The committee recommended this result should be achieved by statute. The committee regarded the 'duty' test as too stringent in modern conditions and productive of too much uncertainty. The committee was opposed to the introduction of a defence similar to the 'public figure' defence enunciated by the United States Supreme Court in New York Times Co. v. Sullivan (1964) 376 U.S. 254.
The Defamation Act 1996 broadly gave effect to the Neill committee recommendations. The Act contained an extended list of categories of statutory qualified privilege. In the Act of 1996 and the Act of 1952 statutory privilege was additional to any common law privilege, but did not protect publication of any matter which was not of public concern and the publication of which was not for the public benefit: see section 15 of the Act of 1996 and section 7 of the Act of 1952.
In other countries
Before turning to the issues raised by this appeal mention must be made, necessarily briefly, of the solutions adopted in certain other countries. As is to be expected, the solutions are not uniform. As also to be expected, the chosen solutions have not lacked critics in their own countries.
In the United States the leading authority is the well-known case of New York Times Co. v. Sullivan 376 U.S. 254. Founding itself on the first and fourteenth amendments to the United States Constitution, the Supreme Court held that a public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves, with convincing clarity, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. This principle has since been applied to public figures generally.
In Canada the Supreme Court, in Hill v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129, rejected a Sullivan style defence, although that case did not concern political discussion. The Supreme Court has not had occasion to consider this issue in relation to political discussion.
In India the Supreme Court, in Rajagopal v. State of Tamil Nadu (1994) 6 S.C.C. 632, 650, held that a public official has no remedy in damages for defamation in matters relating to his official duties unless he proves the publication was made with reckless disregard of the truth or out of personal animosity. Where malice is alleged it is sufficient for the defendant to prove he acted after a reasonable verification of the facts.
In Australia the leading case is Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The High Court held unanimously that qualified privilege exists for the dissemination of information, opinions and arguments concerning government and political matters affecting the people of Australia, subject to the publisher proving reasonableness of conduct. The High Court regarded its decision as an extension of the categories of qualified privilege, and considered that the reasonableness requirement was appropriate having regard to the greater damage done by mass dissemination compared with the limited publication normally involved on occasions of common law qualified privilege. As a general rule a defendant's conduct in publishing material giving rise to a defamatory imputation would not be reasonable unless the defendant had reasonable grounds for believing the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Further, the defendant's conduct would not be reasonable unless the defendant sought a response from the person defamed and published the response, except where this was not practicable or was unnecessary.
In South Africa the issue has not been considered by the Constitutional Court. In National Media Ltd. v. Bogoshi 1998 (4) S.A. 1196, 1212 the Supreme Court of Appeal broadly followed the approach of the Court of Appeal in the present case and the Australian High Court in the Lange case. Press publication of defamatory statements of fact will not be regarded as unlawful if, upon consideration of all the circumstances, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time. In considering the reasonableness of the publication account must be taken of the nature, extent and tone of the allegations. Greater latitude is usually to be allowed in respect of political discussion.
In New Zealand the leading case is the Court of Appeal decision in Lange v. Atkinson  3 N.Z.L.R. 424. The Court of Appeal held that members of the public have a proper interest in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those seeking election. General publication of such statements may therefore attract a defence of qualified privilege. The exercise of reasonable care by the defendant is not a requirement of this defence. This decision is currently under appeal to the Privy Council. The Judicial Committee heard this appeal shortly before the Appellate Committee of your Lordships' House, similarly constituted, heard the parties' submissions on the present appeal.
A new category of privileged subject-matter?
I turn to the appellants' submissions. 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. Political information can be broadly defined, borrowing the language used by the High Court of Australia in the Lange case, as information, opinion and arguments concerning government and political matters that affect the people of the United Kingdom. Malice apart, publication of political information should be privileged regardless of the status and source of the material and the circumstances of the publication. The newspaper submitted that the contrary view requires the court to assess the public interest value of a publication, taking these matters into account. Such an approach would involve an unpredictable outcome. Moreover, it 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 are powerful arguments, but I do not accept the conclusion for which the newspaper contended. My reasons appear from what is set out below.