This week the supreme court (Lords Phillips, Brown, Mance, Clarke and Dyson) is hearing the appeal of the defendant, Times Newspapers, against the decision of the Court of Appeal ([2010] EWCA Civ 804) that the publication of an article on 2 June 2006 was not covered by Reynolds privilege.
This is only the second time that the highest court has considered the application of the "responsible publication in the public interest", first established by the House of Lords in Reynolds v Times Newspapers ([2001] 2 AC 127) nearly 12 years ago. The court is not being invited to engage in a radical reconsideration of the limits of this defence but rather to consider questions of balance and the limits of editorial discretion.
So this is a case about allegations, judgment and balance. It concerns the limits of the protection given by the law to the reporting of unverified allegations. Is this a matter for the judgment of the editors or is it an area in which the law should impose standards? In contrast to the position in Reynolds and Jameel, the issue will be expressly and directly framed in terms of the balance between Article 8 and Article 10. The case illustrates how the law of defamation and the law of privacy are moving ever closer. An important but subsidiary point concerns the extent to which the appellate court will interfere with the judgment of a first instance judge in striking this balance: is it closer to the exercise of a discretion or the making of a determination of law?
The decision at first instance was the first time that a national newspaper had successfully established a Reynolds defence. It has been forcefully argued that the decision of the Court of Appeal is inconsistent with the decision of the House of Lords in Jameel v Wall Street Journal ([2007] 1 AC 359). The argument that if the Court of Appeal judgment stands then "Reynolds is dead" is plainly overstated.
The case involved the reporting of allegations. It was accepted that the newspaper was entitled to report the police statement about the investigation (as this was covered by statutory qualified privilege) and it was conceded that the name of the claimant could also be reported. The question is whether the reporting of the details of the allegations was covered by conventional Reynolds privilege. In substance, the judge decided that this was a matter for editorial judgment by the media (see [2009] EWHC 2375 (QB) [202]) whilst the Court of Appeal decided that the claim to privilege failed because the steps taken to verify were inadequate.
The effect of the decision is that, outside the special category of "reportage", the reporting of allegations made by others will only be protected by Reynolds privilege if proper steps are first taken to verify their truth. This is a high hurdle for the media but, it could be argued, is necessary to protect the Article 8 reputation rights of those against whom allegations are made.
This case shows how difficult the issues concerning "responsible publication" can be in practice – which has been one criticism of the defence by libel reform campaigners. The defamation bill does not take matters much further in this regard. It can, however, be forcefully argued that this kind of approach is a necessary feature of a legal system which gives proper weight to both expression and reputation. A defence similar in nature to Reynolds is now established in almost every common law jurisdiction outside the United States – most recently in Canada and Namibia. In the end a "balancing exercise" between the competing rights is unavoidable. As this case illustrates, it will often not been an easy one to strike.
This is an edited version of a longer blog that originally appeared on the UK Supreme Court blog.