Reynolds v Times Newspapers Ltd [2001] 2 AC 127

Key Points

  • The this case laid down the Reynolds defence of qualified privilege which contains a set of 10 factors to be considered (which has since been abolished by section 4(6) of the Defamation Act 2013
  • Common law should not develop a category whereby the publication of all political information would attract qualified privilege whatever the circumstances
  • The qualified privilege defence was available in respect of political information upon application of the established common law duty-interest test

Facts

  • Plaintiff, a prominent public figure in Ireland, claimed damages for defamation against the Defendant, for publishing an article in “The Sunday Times” which referred to the Plaintiff’s resignation as Irish Taoiseach and leader of the Fianna Fail party, for bearing the meaning that he had misled the legislature and cabinet
  • The reasons for the Plaintiff’s resignation were (undisputedly) of public interest, and in relation to the Northern Ireland peace process
  • The Court of Appeal held that the Defendant could not raise the defence of qualified privilege
  • The Defendant appealed,  arguing that common law should recognise a new category of qualified privilege for political information covering reported matters, except those motivated by malice

Held (House of Lords)

  • Appeal dismissed
  • Creation of a new/separate category would award insufficient protection of reputation and be unsound in principle by distinguishing political information from other public concerns
  • Instead, an adaptation was created (“The Reynolds Defence”) which set out a list of 10 factors to be taken into account (not exclusively, but depending on the circumstances)
  • Court emphasised the importance of freedom of expression and in recognition of Article 10 (of the European Convention on Human Rights), and that they should be slow to deem that the publication was not in the public interest

Lord Nicholls

Privilege in general

  • Describes a privileged occasion as a time: “[w]hen the interest is of sufficient importance to outweigh the need to protect reputation”: p. 194
  • Qualified privilege: “the privilege is qualified in that it can be defeated if the plaintiff proves the defendant was actuated by malice”: p. 194
  • Absolute privilege: “uninhibited expression is of high order that the occasion attracts absolute privilege, as with statements made by judges or advocates or witnesses in the course of judicial proceedings”: p. 194
  • Affirmed that the established common law duty-interest test (i.e., whether there had been a duty to publish the material to the intended recipients and whether they had had an interest in receiving it) applied to political information

The Reynolds Defence Factors: “Depending on the circumstances, the matters to be taken into account include the following.

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.”: p. 205

Commentary

  • Now instead of a specific list of factors, sections 4(2) and 4(4) of the Defamation Act 2013 require the court to take “all the circumstances” into account