Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others  continued

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    The correct approach to the line between permissible and impermissible political speech was indicated by the European Court of Human Rights in Lingens v. Austria (1986) 8 E.H.R. 407, as follows (at 419, para. 42):

     "The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt article 10(2) enables the reputation of others--that is to say, of all individuals--to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues."

Implicit in that dictum is the distinction that speech about political matters has a higher value than speech about private lives of politicians. The dictum in the Lingens case was reinforced by the European Court of Human Rights in Oberschlick v. Austria (1991) 19 E.H.R.R. 389, 422, para. 59. Moreover, it will always be necessary to take into account the dynamics of the role of the press and that "news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest": The Sunday Times v. United Kingdom No. 2 (1991) 14 E.H.R.R. 229, 242 (para. 51). If the matter is approached in this liberal way the balance in our law between freedom of information and the right to reputation should fulfil the Convention requirement of being necessary in a democracy.

    In the result I would uphold qualified privilege of political speech, based on a weighing of the particular circumstances of the case.

Issue (4): The function of the judge and jury

    My Lords, the American Law Institute, Restatement of the Law, Torts, 2d, (1977) summarises in paragraph 619 the function of judge and jury in the following terms in regard to privilege:

     "(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege.  "(2) Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege."

The commentary on subsection (1) reads as follows:

     "Whether a privilege exists at all is a question for the court. This requires the court to determine whether the circumstances under which the publication was made were such as, . . . to make the publication privileged. This is true whether the issue involves the existence of an absolute privilege or of a conditional privilege. If the facts are in dispute, the jury is called upon to consider the evidence and pass upon the issues thus raised. It is for the court, however, to decide whether the facts found by the jury made the publication privileged or to instruct the jury as to what facts they must find in order to hold the publication privileged."

For the sake of completeness the commentary on subsection (2) is as follows:

     "The question whether the defendant acted for an improper purpose or in an improper manner is material if the publication is conditionally privileged . . . Under these circumstances, the qualified protection thus created is lost if the defendant has utilized the privilege for a purpose other than that for which the privilege was created, or if he otherwise abused the privilege. . . . These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn.

For my part these principles admirably and accurately state the English law and practice on the topic of qualified privilege: see Hebditch v. MacIlwaine [1894] 2 Q.B. 54, 58; Adam v. Ward [1917] A.C. 309, 318; Minter v. Priest 1930 A.C. 558, 571-572; Kingshott v. Associated Kent Newspapers [1991] 1 Q.B. 88, 101A-C. I would apply it to the qualified privilege of political speech.

    The particular qualified privilege which I have held to exist may or may not involve issues of primary or secondary fact which are for the jury. But the judge may withdraw the issue from the jury if only one conclusion can be drawn and, in any event, in the light of the jury's findings of fact it is for the judge to decide whether the occasion was privileged.

Issue 5: The decision of the Court of Appeal

    The question arises how the appeal should be resolved.

    The Court of Appeal enunciated a test of qualified privilege, which marked a new development of the law. As a result of the speeches in the House today a different approach has been adopted. In this very difficult case nobody could at the time of trail realistically have foreseen this outcome. Given that a retrial, involving a different judge and jury has been ordered, I regard it as fair that the issue of qualified privilege should be before the judge and jury to be considered in accordance with the speeches delivered today. In any event, on the basis of a transcript of evidence not placed before the Court of Appeal, it is now clear that the Court of Appeal's assumption "that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying" was wrong: at p. 911F. Furthermore, the finding that "Mr Spring did not in terms accuse Mr. Reynolds of lying to the Dáil" is arguably contrary to the findings of the jury and, in any event, debatable. Indeed counsel for Mr. Reynolds described it as a complex issue. Moreover, the issue of justification will have to be reconsidered at the retrial and the evidence on it may overlap with the evidence on qualified privilege. It is fair that both the issues of justification and qualified privilege should be considered by the judge and jury.

    The only escape from this outcome is to say that a failure to publish the explanation given by Mr. Reynolds in the Dáil precludes the newspaper as a matter of law from relying on the qualified privilege of political speech. My Lords, I have already explained why I would not put the law in such a rigid straight jacket. And my understanding is that there is no support for such a rule in the speeches delivered today.

    For these reasons I would hold that the Court of Appeal's ruling (at p. 912A) that "this was not a publication which should in the public interest be protected by privilege in the absence of malice" should not be upheld. Issue 6: The disposal of the appeal.

    I would allow the appeal and remit the issue of qualified privilege to be considered at the retrial.

LORD COOKE OF THORNDON

My Lords,

    I am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.

    The article sued on is a mixture of allegations of fact, comment and reporting. The chief defence at the trial was justification: that is to say, truth. The sting of the article was that Mr. Reynolds had lied to and deceived by non-disclosure the Dáil and his colleague in government, Mr. Spring. An impugning of what was said in the Dáil was thus at the heart of the case, but it became common ground in the argument of this appeal that the plaintiff was entitled to waive and had waived parliamentary privilege. It would seem that implied waiver may likewise explain Adam v. Ward [1917] A.C. 309; contrast Prebble v. Television New Zealand Ltd. [1995] 1 A.C. 321.

    The defence of justification in the present case was disposed of by the jury's finding that the allegation complained of was not true in substance--a finding reached notwithstanding certain misdirections which the Court of Appeal held to have had the effect of denying the plaintiff a fair trial. The part of the Court of Appeal's judgment concerning misdirections has not been challenged on the appeal to your Lordships. At first sight it seems odd that the jury awarded no damages. Lord Lester of Herne Hill Q.C. for the appellants suggested during the argument before the Appellate Committee that the jury's reason for no award was that in evidence before them there were some Irish newspapers containing similar material, on which the plaintiff had not sued in Ireland. That may explain the apparent inconsistency in the verdict, but has little if any bearing on the issue of qualified privilege which your Lordships have to determine.

    Other defences pleaded had been fair comment on a matter of public interest, and a fair and accurate report of proceedings in public of the Irish legislature (Defamation Act 1952, section 7 and Schedule, paragraphs 1 and 14; cf. Defamation Act 1996, section 15 and First Schedule, paragraph 1). But both these defences were abandoned at the outset of the trial. Fair (that is to say, honest) comment would have failed because, as the jury in effect found, the basic facts were not truly stated. To the extent that the article was a fair and accurate report of proceedings in the Dáil, it would have been protected by statutory qualified privilege; but it was not a fair and accurate report, as it omitted the explanation given to the Dáil by Mr. Reynolds. In any event the reporting of the proceedings in the Dáil was mixed up with other allegations, including lying, which the newspaper appeared to adopt as its own or to accept; and these would have been outside the statutory reporting privilege.

    In that situation the defence could not succeed unless the case could be brought within the protection of the subsisting principles of common law regarding qualified privilege (which are not limited or abridged by the statutory privileges: see section 7(4) of the Act of 1952 and cf. section 15(4) of the Act of 1996); or unless the court could be persuaded to introduce into English law a new generic head of qualified privilege for political discussion, on lines similar, for instance, to that proposed for New Zealand by the New Zealand courts in Lange v. Atkinson [1997] 2 N.Z.L.R. 22; [1998] 3 N.Z.L.R. 424, contemporaneously under appeal to the Privy Council. The less-sweeping new generic head established by the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 might be an alternative approach.

    In Reynolds the defence preferred to take the high ground. As in the courts below, counsel for the appellants to your Lordships concentrated on arguing for a new generic privilege for political discussion, limited merely by the possibility of the plaintiff's proving malice. Only in the dying stages of Lord Lester's reply was a less radical new generic privilege put forward as an alternative. This would have some similarity to the solution evolved for Australia in Lange v. Australian Broadcasting Corporation, with a major difference as to onus. The fallback position of the present appellants would involve placing on the plaintiff the burden of proving unreasonable conduct or lack of reasonable care on the part of the defendant, whereas the Australian solution requires the defendant to establish reasonableness.

    Arguments invoking freedom of speech in a democracy have ready moral, intellectual and emotional appeal, and in this instance their presentation by Lord Lester and Mr. James Price Q.C. lacked nothing in potency. Some famous observations were cited. Your Lordships' Committee were reminded that it was eloquently said by Judge Learned Hand in United States v. Associated Press 52 F. Supp. 362, 372 (1943) that the First Amendment " . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." In like vein was the pronouncement of Holmes J., dissenting but with the concurrence of Brandeis J., in Abrams v. United States 250 U.S. 616, 630 (1919) " . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . "

    Such observations are most naturally apposite, however, to freedom to express ideas and convey news. Neither of the cases in which they were made was a defamation case. It would be dangerous to stretch them out of context. As to defamatory allegations of fact, even in the United States the opinions of jurists differ on the extent to which the collectively cherished right of free speech is to be preferred to the individually cherished right to personal reputation; and it is certain that neither in the United Kingdom nor anywhere else in the Commonwealth could it be maintained that the people have knowingly staked their all on unfettered freedom to publish falsehoods of fact about political matters, provided only that the writer or speaker is not actuated by malice. It would be a mistake to assume that commitment to the cause of human rights must lead to a major abandonment of established common law limitations on political allegations of fact. See, for instance, the Francis Mann lecture by Sir Sydney Kentridge Q.C. (as he now is) Freedom of Speech: Is it the Primary Right?, published in (1996) 45 I.C.L.Q. 253, wherein Sir Sydney argues against introducing a New York Times Co. v. Sullivan-type defence for political discussion (see 376 U.S. 254). "It should not be beyond a court's ability," he says at page 268, "to distinguish in any particular case between hard-hitting political criticism and truly libellous allegations of fact." I would follow that approach.

    As I understand it, none of your Lordships who sat in this case and in the New Zealand Lange case favours any new form of generic privilege for political discussion; and I am of the same mind for the following main reasons:

(i) Although investigative reporting can be of public benefit, the commercial motivation of the press and other sections of the media can create a temptation, not always resisted, to exaggerate, distort or otherwise unfairly represent alleged facts in order to excite the interest of readers, viewers or listeners. This very case may conceivably be an illustration. On the same date, 20 November 1994, as that of the British mainland edition of the 'Sunday Times' containing the article sued on, the Irish edition of the same paper carried a much longer article on the same subject. It presented Mr. Reynolds as a victim of circumstances, which it traced in much detail, and its tone is markedly less dramatic and more objective. As the Court of Appeal records, Mr. Reynolds accepts the article in the Irish edition as being very largely accurate and on the whole unobjectionable. It is common ground that those responsible for the British mainland edition knew what was to be published in the Irish edition. A possible inference, albeit supported by no direct evidence, is that it may have been felt that as full, factually detailed and balanced an account would not have the same appeal for British mainland readers. Be that as it may, there is in my opinion no good reason why politicians should be subjected to a greater risk than other leading citizens, or for that matter any other persons, of false allegations of fact in the media.

(ii) In the United Kingdom a succession of well-qualified committees on the reform of defamation law have rejected anything approaching the generic privilege for which the appellants primarily contend. They have specifically rejected for the United Kingdom a Sullivan approach. Counsel for the present appellants disclaimed seeking to go as far as that case. Still, they adopted as part of their argument certain letters from a leading New York libel attorney, which they tendered during the hearing of this appeal, including an assessment that in the United States public officials and public figures not only have a genuine opportunity to meet the Sullivan test but often do so by succeeding in actual litigation.

    What is being proposed for the appellants is, or is at least close to, Sullivan in a limited sphere (politicians but not at this stage other public figures) but without any assurance that, on the issue of malice, the plaintiff will have access to the defendant's sources. As I understand it, plaintiffs do commonly have such access in the United States. In the United Kingdom the common law and practice regarding protection of media sources has been strengthened by section 10 of the Contempt of Court Act 1981, prohibiting any court from requiring disclosure of a journalistic source unless satisfied that disclosure is necessary in (inter alia) the interests of justice. A contemporary textbook, Carter-Ruck on Libel and Slander 5th ed. (1997), pp. 105-107, refers to the difficulty of predicting when disclosure will be ordered, citing X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1991] 1 A.C. 1 and Goodwin v. United Kingdom 22 E.H.R.R. 123. See also Maxwell v. Pressdram Ltd. [1987] 1 W.L.R. 298 for a vivid illustration of this uncertainty in the defamation field.

 
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