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Defamation Act serves to safeguard public interest
21 February 2010 By Richard Martin
Since the 2009 Defamation Act became law last month, newspapers and other media defendants have been able to avail of a statutory defence to be known as the defence of fair and reasonable publication.
This defence arises where a statement was published in good faith during discussion of a subject of public interest, with the discussion being for the public benefit.
The genesis for this new statutory defence arose in an English House of Lords decision in 1999 in a case taken by former taoiseach Albert Reynolds. It concerned an article published in the Sunday Times in November 2004, three days after Reynolds’ resignation as Taoiseach.
In the judgment, Lord Nicholls stated that people must be able to speak and write freely at times, uninhibited by the prospect of being sued for damages if they are mistaken or misinformed. He said that, in the wider public interest, protection of reputation must sometimes give way to a higher priority.
The judge said there were occasions when a person to whom a statement was made had a special interest in learning the honestly-held views of another person, even if those views were defamatory of someone else and could not be proved to be true. He said that, when the interest was important enough to outweigh the need to protect reputation, the occasion was regarded as privileged.
The public at large could be the ‘person’ with a special interest in learning the honestly held views of another person (the newspaper). However, the article must be of public interest (as opposed to one in which the public merely have an interest), and the newspaper’s approach in gathering the information must be responsible.
The judge outlined ten illustrative tests to assess whether a ‘‘responsible’’ approach had been followed. These include the seriousness of the allegation, the source of the information and steps taken to verify it, whether any comment was sought from the subject and whether the article contained the gist of the subject’s side of the story.
Once the publication passes the public interest test, the court’s inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair. In the case of Jameel v Wall Street Journal Europe, the court spoke of the test of ‘‘responsible journalism’’.
Thus, Reynolds privilege is concerned to protect responsible journalism when reporting matters of public concern. In another British case, Bonnick vMorris, the judge said that responsible journalism involved a fair balance between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved, and can be regarded as the price journalists pay for the privilege.
In 2003, the Irish High Court (in Hunter v Gerald Duckworth and Co) approved of the Reynolds approach. The case indicated that the law on qualified privilege should be expanded to something close to a general public interest defence.
The judge said that, in the absence of legislation, the Reynolds decision was the correct approach in the harmonious construction of the right to freedom of expression with the Constitutional protection of a person’s reputation.
In Monica Leech v Independent Newspapers, Mr Justice Charleton also approved of Reynolds and said that the public had an interest in many matters, as opposed merely to being interested in matters.
He said that being interested in matters would refer to matters which were merely titillating or salacious or gossipy.
Matters which were of public interest, on the other hand, included those which affect the public in terms of the governance of their country, their safety, security and right to judge public representatives fairly on the basis of real information.
The Irish legislature has accepted the development of this common law principle and enshrined it in section 26 of the new act. The section lays down the tests by which the article is to be assessed in terms of the ‘‘responsible journalism’’ principles, which have developed somewhat from Reynolds and Jameel. For instance, the very first test, which resonates with the observation made in the Leech case, is ‘‘the extent to which the statement concerned refers to the performance by the person of his or her public functions’’.
Other tests include the extent to which the statement drew a distinction between suspicions, allegations and facts, and the context and content (including the language) of the statement.
Only time will tell whether the tests laid down in section 26 will become tests which the publication has to ‘‘pass’’ and whether, in the hands of a judge hostile to the spirit of this defence, they can become ten hurdles at any of which the defence may fail.
Richard Martin is a partner in Ronan Daly Jermyn Solicitors where he is head of the commercial dispute resolution department and the firm’s media law unit
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