Defence of qualified privilege no solution

 

ON MONDAY the High Court in London ruled against the Sunday Times's defence of qualified Privilege in the Albert Reynolds case, but the newspaper says that it intends to appeal the decision all the way, if necessary, to the European Court of Human Rights.

UCG law lecturer, Marie McGonagle, has argued in these columns that if the Sunday Times was to succeed in establishing qualified privilege in this case both media and public could benefit in the long term. That begs the question of where the real public interest lies, for the defence of qualified privilege usually only arises when the allegations cannot be proved to be true.

In the Albert Reynolds case, the jury found that the words complained of were false.

Ms McGonagle also says that in - seeking to persuade a court to widen the scope of common law qualified privilege 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.

This ignores the present extent of qualified privilege because the Sunday Times could quite happily have enjoyed a defence of common law or statutory privilege without any problem had they fairly and accurately reported the proceedings of the Dail on November 15th and/or 16th, 1994.

Had they reported the Dail debates of these days fully, the Sunday Times could have made the most robust comments and expressions of opinion that they might have wished, with privilege. The reason the Sunday Times is arguing for a new "political speech" defence in this case is because they, arguably, reported the Dail proceedings unfairly since they did not report Mr Reynolds's explanation for his actions.

In seeking to extend the law of qualified privilege to cover an occasion of "political speech", the Sunday Times relied upon the 1964 US Supreme Court decision in Sullivan v New York Times, which created a special category of plaintiff for public officials in defamation actions.

The common law rule of strict liability was replaced by a narrowly defined fault criterion in which a public official could not recover damages for a defamatory falsehood relating to his official conduct unless he proved that the statement was made with malice.

The Sunday Times also relied upon a House of Lords decision in 1993 in Derbyshire County Council v Times Newspapers (in which it was decided that a local authority could not sue for libel) which found the reasoning in the Sullivan v New York Times case persuasive.

But, unlike the US courts, the House of Lords was unwilling to deprive an individual, as distinct from the local authority or council, of the right to sue in libel. Lord Keith held "if the individual reputation of any (member of the authority) is wrongly impaired by the publication (he) can himself bring proceedings for defamation".

This reservation is surprising in a judgment which held that "it is of the highest importance that a democratically elected governmental body should be open to uninhibited public criticism. What has been described as `the chilling effect' induced by the threat of civil actions for libel is important.

"Often, the facts which would justify defamatory publication are known to be true, but admissible evidence capable of proving these facts is not available. This may prevent the publication of matters which it is desirable to make public".

In the English High Court, Sir Michael Davis, in an application to strike out a public figure privilege plea in Greer v Guardian Newspapers in April 1995, was troubled by the chilling-effect principle. In granting the application, he said "it seems almost to say that it is all right to publish defamatory matter which you cannot show to be true if it is desirable to make it public, without fear of any legal action against you. I ask the rhetorical question: known to whom to be true?"

He reached a similar conclusion in December 1995 in Bennett & Ors. Guardian Newspapers where, in striking out a public figure plea, he said that US culture was different from other countries, including the UK, and that "what was appropriate in the US was not necessarily appropriate elsewhere".

Lord Inglewood, in the second reading of the Defamation Bill in the House of Lords in March of this year, agreed. He said the UK government's view was that "there is no place for such a defence in the UK's defamation law ... the media are adequately protected by the defences of justification and fair comment.

"It is salutary that those defences are available only if the facts are substantially correct. What matters is the subject matter of the publication and how it is treated rather than who happens to be the subject of the allegations.

In deciding that no defence of qualified privilege is open to the Sunday Times in the Albert Reynolds case, Mr Justice French did not find the Sullivan v New York Times decision of assistance for two reasons:

(i) that decision was shaped by the provisions of the US constitution (the United Kingdom has no written constitution), and (ii)that decision had by no means met with unanimous approbation either in the US or in Commonwealth jurisdiction.

The English view is cautious, but not unreasonably so, for ultimately the question must be whether the public interest is better served by press self-censorship (induced by strict libel laws) or the wider dissemination of misinformation. For if an editor can publish what he "knows" to be true but cannot prove, standards must fall.