|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
My starting point is freedom of expression. The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions. Freedom of expression will shortly be buttressed by statutory requirements. Under section 12 of the Human Rights Act 1998, expected to come into force in October 2000, the court is required, in relevant cases, to have particular regard to the importance of the right to freedom of expression. The common law is to be developed and applied in a manner consistent with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Cmd. 8969), and the court must take into account relevant decisions of the European Court of Human Rights (sections 6 and 2). To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.
Likewise, there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally.
Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe  A.C. 135 sense. This common law limitation on freedom of speech passes the 'necessary' test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a 'scoop', would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles.. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.
As high-lighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may 'chill' the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection. The contrary approach, which would involve no objective check on the media, drew a pertinent comment from Tipping J. in Lange v. Atkinson  3 N.Z.L.R. 424, 477:
The common law approach does mean that it is an outside body, that is, some one other than the newspaper itself, which decides whether an occasion is privileged. This is bound to be so, if the decision of the press itself is not to be determinative of the propriety of publishing the particular material. The court has the advantage of being impartial, independent of government, and accustomed to deciding disputed issues of fact and whether an occasion is privileged. No one has suggested that some other institution would be better suited for this task.
For the newspaper, Lord Lester's fall-back position was that qualified privilege should be available for political discussion unless the plaintiff proved the newspaper failed to exercise reasonable care. One difficulty with this suggestion is that it would seem to leave a newspaper open to publish a serious allegation which it had been wholly unable to verify. Depending on the circumstances, that might be most unsatisfactory. This difficulty would be removed if, as also canvassed by Lord Lester, the suggested limitation was stated more broadly, and qualified privilege was excluded if the plaintiff proved that the newspaper's conduct in making the publication was unreasonable. Whether this test would differ substantially from the common law test is a moot point. There seems to be no significant practical difference between looking at all the circumstances to decide if a publication attracts privilege, and looking at all the circumstances to see if an acknowledged privilege is defeated.
I have been more troubled by Lord Lester's suggested shift in the burden of proof. Placing the burden of proof on the plaintiff would be a reminder that the starting point today is freedom of expression and limitations on this freedom are exceptions. That has attraction. But if this shift of the onus were applied generally, it would turn the law of qualified privilege upside down. The repercussions of such a far-reaching change were not canvassed before your Lordships. If this change were applied only to political information, the distinction would lack a coherent rationale. There are other subjects of serious public concern. On balance I favour leaving the onus in its traditional place, on him who asserts the privilege, for two practical reasons. A newspaper will know much more of the facts leading up to publication. The burden of proof will seldom, if ever, be decisive on this issue.
For Mr. Reynolds, Mr. Caldecott submitted that in the context of political speech a report which 'failed to report the other side' should always fail the common law test and, further, that there should be a burden on the newspaper to establish a cogent reason why it should be excused from proving the truth of the assertion. I cannot accept either of these suggested requirements. Failure to report the plaintiff's explanation is a factor to be taken into account. Depending upon the circumstances, it may be a weighty factor. But it should not be elevated into a rigid rule of law. As to the second requirement, it is not clear to what extent, and in what respects, this suggestion covers ground different from the ground already covered by the common law principle.
Human rights jurisprudence
The common law approach accords with the present state of the human rights jurisprudence. The immensely influential judgment in Lingens v. Austria (1986) 8 E.H.R.R. 407 concerned expressions of opinion, not statements of fact. Mr. Lingens was fined for publishing in his magazine in Vienna comments about the behaviour of the Federal Chancellor, Mr. Kreisky: 'basest opportunism', 'immoral' and 'undignified'. Under the Austrian criminal code the only defence was proof of the truth of these statements. Mr. Lingens could not prove the truth of these value judgments, because Mr. Kreisky's behaviour was capable of more than one interpretation. In a passage, often overlooked, at pp. 420-1, in para. 46 of its judgment, the European Court of Human Rights stated that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The facts on which Mr. Lingens founded his value judgments were undisputed, as was his good faith. Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention. The court has subsequently reiterated the distinction between facts and value judgments in De Haes and Gijsels v. Belgium (1997) 25 E.H.R.R. 1, 54 at para. 42.
In Fressoz and Roire v. France (unreported), 21 January 1999, Case No. 29183/95, paragraph 54, the court adverted to the need for accuracy on matters of fact. Article 10 protects the right of journalists to divulge information on issues of general interest provided they are acting in good faith and on 'an accurate factual basis' and supply reliable and precise information in accordance with the ethics of journalism. But a journalist is not required to guarantee the accuracy of his facts. Bladet Tromso and Stensaas v. Norway (unreported), 20 May 1999, Case No. 21980/93 involved newspaper allegations of fact: cruelty by seal hunters. The Court of Human Rights considered whether the newspaper had a reasonable basis for its factual allegations. Similarly, in Thorgeirson v. Iceland (1992) 14 E.H.R.R. 843 two newspaper articles reported widespread rumours of brutality by the Reykjavik police. These rumours had some substantiation in fact: a policeman had been convicted recently. The purpose of the articles was to promote an investigation by an independent body. The court held that although the articles were framed in particularly strong terms, they bore on a matter of serious public concern. It was unreasonable to require the writer to prove that unspecified members of the Reykjavik police force had committed acts of serious assault resulting in disablement.
None of these three latter cases involved political discussion, but for this purpose no distinction is to be drawn between political discussion and discussion of other matters of public concern: see the Thorgeirson case, at pp. 863-4, 865 para. 61, 64.
My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop 'political information' as a new 'subject-matter' category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.