|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
LORD HOBHOUSE OF WOODBOROUGH
I agree that this appeal should be dismissed for the reasons given by my noble and learned friend Lord Nicholls of Birkenhead. Like my noble and learned friend Lord Cooke of Thorndon, I am in full agreement with the speech of Lord Nicholls. The few words which I will add should not be read as in any way detracting from the clarity of that agreement.
This case is concerned with the problems which arise from the publication of factual statements which are not correct--i.e. do not conform to the truth. This case is not concerned with freedom of expression and opinion. The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law.
The liberty to communicate (and receive) information has a similar place in a free society but it is important always to remember that it is the communication of information not misinformation which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations.
The law of civil defamation is directly concerned with the private law right not to be unjustly deprived of one's reputation and recognises the defence of privilege. The justification for this defence is at least in part based upon the needs of society. It can sensibly be asked why society or the law of defamation should tolerate any level of factual inaccuracy. The answer to this question is that any other approach would simply be impractical. Complete factual accuracy may not always be practically achievable nor may it always be possible definitely to establish what is true and what is not. Truth is not in practice an absolute criterion. Nor are the distinctions between what is fact and innuendo and comment always capable of a delineation which leaves no room for disagreement or honest mistake. The free discussion of opinions and the freedom to comment are inevitably liable to overlap with factual assumptions and implications. Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.
There is another aspect of the law which needs to be identified. Save as provided in section 1 of the Defamation Act 1996, any publication of a defamatory statement exposes the publisher of that statement to tortious liability. This is so whether or not he is the originator of the statement or is simply republishing what someone else has said. This rule is relevant to the defence of privilege and the media. Journalists very often have no personal knowledge of the truth or falsity of the facts which they report and publish. Typically they are reporters of material derived from others. The character of the source is relevant to the kind and the extent of the privilege which should be afforded to the publisher. For example, privilege attaches to the reporting of legal proceedings and of the evidence given to and the findings of Inquiries. It is in the public interest that the public should be informed about such matters and this is so even if some of what has been said during such proceedings may not have been true. But the same cannot be said of casual gossip overheard by a journalist; there is no public interest in its repetition unless it be factually true. Between these two extremes there is a spectrum of possible circumstances.
To attract privilege the report must have a qualitative content sufficient to justify the defence should the report turn out to have included some misstatement of fact. It is implicit in the law's insistence on taking account of the circumstances in which the publication, for which privilege is being claimed, was made that the circumstances include the character of that publication. Privilege does not attach, without more, to the repetition of overheard gossip whether attributed or not nor to speculation however intelligent.
The decided cases confirm both the recognition of the element of public interest in the law of privilege (e.g. Perera v. Peiris  A.C. 1) and the limits within which it must be kept (Blackshow v. Lord  Q.B. 1; see also Truth (N.Z.) Ltd. v. Holloway  N.Z.L.R. 69). The publisher must show that the publication was in the public interest and he does not do this by merely showing that the subject matter was of public interest. The decided cases also show that, anyway in English law, the doctrine of express malice does not provide an adequate safeguard. It is a very narrow doctrine as explained by Lord Diplock in Horrocks v. Lowe  A.C. 135. The plaintiff has to prove that the publisher did not have an honest belief in the truth of what he was publishing: "the law demands no more" (p.150E). The subjective character of this criterion makes the plaintiff's burden of proof one which it is difficult to discharge in all but the most blatant cases. It is also inadequate to meet the objective requirements of a satisfactory law of privilege. Both in England and in other countries there have been statutory interventions which affect the structure of this part of the law. In New South Wales this is manifestly so and in New Zealand the statutory definition of malice in section 19 of the Defamation Act 1992 clearly has to be taken into account. In England the provisions of the Defamation Act 1996 take the form of providing the media with additional special defences and therefore do not provide a justification for introducing the further modifications of the existing law for which the appellants have contended.
As your Lordships agree, there is no generic privilege. There are reasons of principle and practical reasons for this. No genus is satisfactory, nor is any genus more satisfactory than the criterion of what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public. It is clearly established in English law that the duty/interest test is not confined to private duties and interests. The public dimension recognised by the law encompasses in a satisfactory and adaptable manner those types of publication to which privilege should attach. Any generic category will tend to be both too wide and too narrow. It will fail to take account of the differing character and circumstances of the publications which may fall within it. It will fail to afford privilege to publications which fall outside its definition but are equally deserving of privilege.
Your Lordships were urged by the appellants to endorse an approach which would leave it to publishers to decide whether or not to publish and to uphold their privilege to do so save where the plaintiff can prove actual bad faith on the part of the publisher. Such an approach would of course be attractive to the media but it would be handing to what are essentially commercial entities a power which would deprive the subjects of such publications of the protection against damaging misinformation. Such persons and the public are entitled to the disinterested and objective involvement of the law. It is for the publisher to establish to the satisfaction of the law that the publication was privileged. It is only once the publisher has done this that a burden of proof passes to the plaintiff. As previously stated, the burden of proof which the plaintiff then has to discharge is not a light one.
There are advantages for the media in the present state of the law as the experience of the United States of America subsequent to the Sullivan case (376 U.S. 254) has shown. The present law is consistent with the publisher being able, if he so chooses, to preserve the confidentiality of his sources. The burden of proving circumstances justifying privilege is upon the publisher. Whether or not he chooses to disclose his sources in order to assist him to do so is (in general) a matter for him. If on the other hand there is some generic privilege which without more confers privilege, the aggrieved party must in justice be able to obtain discovery of all the relevant facts and documents to enable him to displace that privilege. This is what has happened in the United States. The trade-off for the more extensive defence has been the requirement of full disclosure by way of extensive and onerous pretrial discovery.
I agree with Lord Nicholls that the circumstances of publication have to be taken into account in determining whether any particular publication was privileged. This, as the authorities he cites show, is an established part of English law. The criticism to be made of the Court of Appeal judgment is that it sought to treat the circumstances as a separate and distinct element. This was unnecessary and mistaken. But the substance of the judgment must be upheld. The Court of Appeal also reached the right conclusion upon the application of the law to the essentially undisputed facts of the present case. There is no justification for allowing the defendants to reopen that aspect of the case on the retrial.
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