|Judgment -House of Lords - Reynolds v. Times Newspapers Limited and Others continued|
Lord Lester pointed out that at the end of his speech (at p. 27) Lord Buckmaster L.C. indicated that whether the material published had been checked went only to malice. The argument is that failure to include the plaintiff's account, or to give him an opportunity of contradicting the article to be published, are examples of matters which do not bear on the existence of privilege, but only on the loss of privilege.
The answer to that argument, in my opinion, is to be found in the nature of the publication. The Greenlands case was one of publication in confidence to a single potential customer. Many qualified privilege cases are concerned with very limited publications. Then, the occasion and the subject matter being identified, there is normally no reason to go further. When a publication to the world at large is in issue, however, the policy of the law is different. For reports, fairness and accuracy are essential at common law (Wason v. Walter (1868) L.R. 4 Q.B. 73), just as they invariably are for statutory reporting privileges (see now the Defamation Act 1996, section 15 and Schedule 1). Some of the latter also require compliance with requests to publish reasonable statements by way of explanation or contradiction.
Hitherto the only publications to the world at large to which English courts have been willing to extend qualified privilege at common law have been fair and accurate reports of certain proceedings or findings of legitimate interest to the general public. In Blackshaw v. Lord  Q.B. 1, Templeton v. Jones  1 N.Z.L.R. 448, and now the present case, the law is being developed to meet the reasonable demands of freedom of speech in a modern democracy, by recognising that there may be a wider privilege dependent on the particular circumstances. For this purpose I think it reasonable that all the circumstances of the case at hand, including the precautions taken by the defendant to ensure accuracy of fact, should be open to scrutiny. Lord Nicholls has listed, non-exhaustively, matters to be taken into account. As the Court of Appeal suggested, this brings English law into a position probably not very different from that produced by the Australian reasonableness test, but perhaps rather more consonant with common law tradition. Onus becomes unimportant, except in the sense that evidence of the circumstances surrounding the publication is necessary. The contents of the publication in those circumstances become all-important.
The established common law rule, for which Adam v. Ward  A.C. 309 is the leading authority, is that disputed questions of fact relevant to an issue of qualified privilege are for the jury, but otherwise it is for the judge to determine whether the privilege applies: see Gatley on Libel and Slander, 9
At common law any value judgment required in determining whether a publication is privileged has been widely understood, in England and I believe elsewhere in the Commonwealth, as falling to the judge. I would be loath to entrench upon that understanding. Defamation cases are already difficult enough for juries, and the drastic judicial surgery that has had to be undertaken to curb extravagant awards of damages (see John v. MGN Ltd.  Q.B. 586) suggests that it may now be over-romantic to conceive of juries as champions of freedom of speech as in the days of Penn and Mead's case (1670) 6 St.Tr. 951 and Bushell's case (1670) 6 St.Tr. 999.
As for the application of the principles to the circumstances of the present case, I cannot do better than reproduce the Court of Appeal's words reported in  3 W.L.R. 862, 911-912-
Subject to the refinement that the circumstantial test should not be treated as something apart from the duty-interest test, I would be content to adopt all of that. Various explanations were offered for the appellants, but they do not shake the essential accuracy of what the Court of Appeal said. It does seem to me to be correct that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying. There was some evidence to the effect that one might naturally assume from Mr. Finlay's association with Mr. Spring that he spoke with the latter's authority; but that is a different point and does not in my view affect the balance of the case as to qualified privilege. If their primary argument for generic privilege fails, the appellants seek to have the issue of qualified privilege determined at a new trial and on possibly different evidence. My Lords, I cannot think that this would be just. They had every opportunity at the trial of calling such evidence as they saw fit. In the light especially of Blackshaw v. Lord  Q.B. 1, it was readily foreseeable that any privilege might be held to depend on the particular circumstances; and the pleadings and arguments for the defendants were wide enough to cover this possibility, although it was not the outcome for which they primarily contended. The new trial has not been ordered because of any defect in the trial having anything to do with the ruling against qualified privilege. On that issue the defendants have had their day in court--indeed many days in three courts--and, if a new trial does take place, it should be, as I see the justice of the case, on the basis that the article is not eligible for privilege. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
Among the issues which are raised by this case are two important questions which relate to the structure of the law of defamation in its application to qualified privilege.
The first question is whether discussion of matters relating to the public conduct of those elected to positions of responsibility in government (referred to as "political discussion" by Lord Lester of Herne Hill Q.C. in the course of his argument) should be accorded the benefit of a generic common law qualified privilege. If that were so, all defamatory statements of fact made in the course of such discussion would be protected by the privilege. And the benefit of the defence would extend not only to the newspapers but to all sections of the media. The result would be that all statements of fact falling within the scope of this category would be presumed to have been made without malice. The burden of proving malice would rest in all such cases on the person who claimed that the statement was defamatory.
The second question assumes that the availability of the defence will continue to depend upon the facts of each case. It relates to the tests which must be applied in order to decide whether, in the particular circumstances, the occasion on which the statement was made was one which entitled the maker of it to the protection of the qualified privilege. Giving the judgment of the Court of Appeal, Lord Bingham of Cornhill C.J. said that three tests required to be satisfied: the duty test, the interest test and the circumstantial test:  3 W.L.R. 862, 899D-G. At the end of the judgment, at p. 911E, he said that the duty and interest tests were, in general, satisfied in this case but that the court could not regard the circumstantial test as satisfied. In the last paragraph of the judgment, at p. 912A, he said:
The question is whether, in its formulation of the circumstantial test, the court went further than it ought to have done in defining the circumstances of the occasion by introducing into that test matters of fact which might be thought to be relevant to the issue of malice - indicating abuse of the occasion - rather than to the question whether the occasion itself was privileged.
The generic privilege
The occasion for which the appellants seek to be accorded the benefit of a generic qualified privilege was the publication in an edition of the "Sunday Times" newspaper circulating in the United Kingdom of an article relating to the resignation of Mr. Albert Reynolds, who had just resigned as Taoiseach in the Irish government, and the collapse of his coalition government. Mr. Reynolds claims that passages in that article meant and were understood to mean that he had deliberately and dishonestly lied to the Dáil by suppressing information which he possessed about the suitability for promotion of the Irish Attorney-General whose appointment to the Presidency of the High Court of Ireland he was promoting, and that he deliberately and dishonestly misled his coalition cabinet colleagues by withholding that information from them and lying about when the information came into his possession.
The generic privilege for which the appellants contend was formulated in various ways by Lord Lester. But in essence his submission was that it should extend to any discussion of a governmental or political matter affecting the people of the United Kingdom. He made it clear that the privilege for which he contended was intended to apply only in respect of criticism of political conduct and not to private conduct. The theme which he stressed throughout was that the justification for the generic privilege was that it was necessary in a modern democratic society, in view of the strong public interest in free speech in general and in freedom of expression on political issues on the press and other sections of the media in particular.
An examination of this issue must start from familiar first principles. The foundation of an action of defamation is malice. If words are used which are defamatory and untrue the law implies malice. That presumption is rebutted if the occasion when the words were used is privileged. The privilege destroys the presumption. But it remains open to the claimant to prove that there was malice in fact. At the heart of the matter is the question whether "the occasion" is privileged. This occurs where the person who makes the communication has an interest or duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v. Ward  A.C. 309, 334, per Lord Atkinson. The interest or duty may be a legal or moral duty or it may arise from social circumstances. But it is essential that there should be a reciprocity of duty and interest as to the matter which is being communicated. As Lord Atkinson pointed out, the communication is often loosely described as privileged. But strictly speaking it is the occasion itself which is privileged.
It is important not to lose sight of this point as we examine the issues raised by this case. It is essential to a proper understanding of the structure of this branch of the law. The privilege is given not to communications nor to the people who communicate them, but to the occasion. No individual or organisation, such as a newspaper or any other section of the media, can assert that it is entitled to the benefit of qualified privilege simply because of who or what that individual or organisation is or what it does. It is the occasion of the communication which must be examined, to see whether there was an interest or duty to make it and a corresponding interest or duty to receive it, having regard to its particular subject matter.
The application of these principles to particular facts and circumstances may show that there are some occasions of qualified privilege which can be regarded as falling into a recognisable group or category. Cases of that kind may be regarded as attracting what has been described as a generic common law qualified privilege. All occasions falling within that group or category will be treated as occasions of qualified privilege, and proof of actual malice will always be required before the words used can be held to be defamatory. This assists free speech and full and frank disclosure of the facts. It removes the inhibiting, or "chilling," effect which the law of defamation imposes on the discussion of matters of public interest. As a general rule it is beneficial and in the public interest that communication between parties with the necessary reciprocal duty and interest in the matter should not be inhibited.