Why benefits could come from principle of qualified privilege

AS the Sunday Times only rubbing salt in the wound in pursuing its defence of qualified privilege? The answer in my view is no. It did not succeed in its defence of justification in that the jury found the allegations against Mr Albert Reynolds were not true in substance. So now the paper has moved to its second line of defence, qualified privilege.

It is quite common for a defendant in a libel action to plead more than one defence in the hope that if one defence is not established another might be. However, it is not just a question of the Sunday Times trying to win the case, it is also a matter of trying to establish a legal principle that would have considerable importance for the media in general.

In libel law there are two kinds of qualified privilege. One is common law, that is to say, it is judge made and has been developed in the context of court cases over the centuries. The other is a statutory qualified privilege, contained in this State in the Defamation Act 1961 and closely modelled on the British Act "of 1952. Both forms of qualified privilege should have important practical functions but neither is very satisfactory from the point of view of media reporting.

Common law qualified privilege is based on the twin concepts of duty and interest that the person who publishes the information does so in a situation where (s)he has either a duty to do so or an interest in doing so and published it to a person or persons who have a reciprocal interest in receiving the information.

An example would be where a formal complaint is being inquired into by an appropriate body or a reference being written for a person seeking a job. Provided there is no malice or wrongful motive involved, such an occasion is privileged and, an action for libel will not succeed. Without such a privilege many ordinary everyday occurrences in business and administration, for example, would be hampered by threats of libel actions.

The difficulty for the media is that the British and Irish courts have always taken a narrow view of qualified privilege and have consistently refused to recognise that the media have a general duty to inform the public even on important matters of public interest. They have, however, recognised that where a person is attacked in a newspaper or other public forum, that person should have privilege to reply.

An example is the ease of Lindsay v Maher in 1983, where Mr T.J. Maher, an elected representative of the firming community, replied in a newspaper interview to attacks made on farmers by the then Master of the High Court in open court. Mr Maher was deemed to have privilege to defend the farmers he represented.

In seeking to persuade a court to widen the scope of common law qualified privilege, therefore, the Sunday Times could argue that as a national British newspaper, it had a duty to inform, or at least an interest in informing, its readers as to what was happening in the government or parliament of a neighbouring country, and that its readers had a reciprocal interest in receiving the information.

If such a duty or interest were established, the defence would not be defeated by malice since the jury had already found there was no malice involved and the article was a fair report of Mr Dick Spring's stated reasons for leaving government.

While acceptance of a general media duty even in relation to political reporting would be a major step for a British or Irish court to take, it would not be out of line with the approach to political reporting, assessment and comment in other European countries or with the approach of the European Court of Human Rights. That court has already in a number of defamation cases involving political speech emphasised the importance of media reporting and the duty of the media to inform the public.

The other form of qualified privilege is a statutory privilege, available to newspapers and broadcasters in respect of fair and accurate reports of certain specified legislative and judicial proceedings, international organisations, bona fide pub he meetings and proceedings of associations - provided, in all cases, that the matters are of public concern and for the public benefit.

There is an additional requirement in respect of reports of public meetings and the proceedings of local authorities and various associations that is, that the privilege is subject to a statement by way of explanation or clarification being published if requested. A person who felt (s)he had been defamed in a report of such a body could request that an explanation or clarification be published and a publisher who refused to publish a reasonable statement to that end, or who neglected to do so or did so in an inadequate manner, could lose the privilege.

Statutory qualified privilege recognises the importance of the reporting and information role of the media but is out of date in a number of respects. Reform bodies in a number of countries, including the Neill Committee in the UK in 1991, whose recommendations were taken up by the Lord Chancellor's Department, have proposed that it be revised and updated. In Ireland, the Law Reform Commission has put forward a number of amendments and extensions to the existing list.

The Newspaper Commission referred to the apparent "inconsistencies and anomalies in the present law, which lead to confusion having regard to modern conditions", and one of its concerns was with the reporting of public and community activities, often through press conferences, which are not protected at present.

In short, therefore, common law qualified privilege has been too narrowly applied and statutory qualified privilege is too limited and out of date to be of sufficient benefit to media reporting of public events, on which the public depends.

As the European Court of Human Rights has said (Lingens v Austria, 1986): (It) is incumbent on (the press) to impart information and ideas on political issues just as those in other areas of public interest. Not only does the press have the task of imparting such information and ideas, the public also has a right to receive them.

If the Sunday Times were to succeed in establishing qualified privilege, both media and public could benefit in the long term.