Sir, - Marie McGonagle, in her review of the rejection by the House of Lords privilege in the Reynolds case (Opinion, November 1st) concludes that an appeal to Europe may bring dividends for the Sunday Times on the issue of political speech.
This raises questions about the actual protection afforded by the European Convention of Human Rights, the extent to which the House of Lords considered its provisions, and, more fundamentally, where the real public interest lies.
The essence of privilege is that it protects the publication of information which is false, subject to malice on the part of the writer.
Should the issue be taken to Europe, the court will balance two fundamental rights guaranteed by the Convention: access to justice for an individual (article 6) and freedom of expression (article 10). Article 10 is not an absolute right: the guarantee expressly recognises that the exercise of this right carries with it "duties and responsibilities" and accordingly subjects it to restrictions necessary for the protection of the rights of others, including the protection of reputation.
The jurisprudence of the court in applying Article 10 is interesting. Ms McGonagle relies on the leading case of Lingens v Austria (1986) as indicating a "margin for error in reporting political events or matters of public concern". But this case concerned comment, not an assessment of facts, and turned on whether Mr Lingens was entitled to comment on undisputed facts, there being no defence of fair comment in Austria.
The court held that "the limits of acceptable criticism are. . .wider as regards a politician as such than as regards a private individual", but "in the Court's view, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof". Lord Nicholls found this passage compelling, and remarked that it was often overlooked.
It is a common theme of European Court jurisprudence that there must be an accurate, factual basis for political discussion. In De Haes and Gijsels v Belgium (1997) the court reiterated the distinction between facts and comments; likewise in the recent decision of Fressoz and Roire v France (1999), where it stressed the need for accuracy in matters of fact.
Fair comment is of course available both in England and in Ireland. It is a defence which protects honest (even if unfair) comment on true or privileged information. In the Reynolds case the Sunday Times demands a new political speech privilege because the article it published was not a fair and accurate report of the relevant Dail debate (thus attracting statutory privilege); and because it presented as fact, and not comment, the central allegation of lying from an anonymous source. The House of Lords particularly noted that the Sun- day Times abandoned defences of fair comment and statutory privilege at the 1996 trial.
Not only did the House of Lords review the provisions and jurisprudence of the European Convention, Lord Nicholls gave special weight to the exercise of the right to freedom of expression: "to be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration". The House of Lords decided (3-2) that the circumstances of publication were sufficiently compelling to deny privilege to the Sunday Times article.
Lord Nicholls found that the common law approach accorded with the human rights jurisprudence, and said "the common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse."
When taking its appeal to the House of Lords, the Sunday Times said it sought "the liberalisation of the law. . .to enable the media and the public to criticise those who govern us without fear of a libel action". But that ignores the generous protection already available for political discussion. In fact it seeks a generic privilege for political speech which would entitle the press to disseminate material which is untrue (subject to improper motive on the part of the journalist).
It is tempting for the press to see the law of libel as inhibiting the flow of information. It does not. It inhibits the flow of misinformation.
The fundamental issue is whether democracy is better served by the wider dissemination of misinformation. The Law Reform Commission in Ireland thought not: in its report on the Civil Law of Defamation (cited in the House of Lords) it concluded that "statements. . .contribute meaningfully to public debate only if they are true." In the House of Lords last week, Lord Hobhouse agreed: "The working of a democratic society depends on the members of that society being informed, not misinformed." - Yours, etc.,
Pamela Cassidy, Partner, Crockers Oswald Hickson, Gough Square, London EC4.