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Bulletins Story:
ANOTHER REYNOLDS DEFENCE FAILS: JAMEEL v WALL ST
JOURNAL
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Date:
11.02.2005
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When the Reynolds privilege defence was created by the House of
Lords some five years ago, many thought that it would substantially
widen the extent of the Article 10 right conferred on the media by
the European Convention on Human Rights, and the scope for
reporting matters of public interest would be considerably
widened.
Since then, virtually every Reynolds defence has, however,
failed. The most recent Court of Appeal decision indicates
that the standards expected of any journalist seeking to rely on
this defence will remain high. This case was also used by the
Court of Appeal to stress the public interest requirement of the
Reynolds test.
The Wall St Journal was appealing against the decision of Mr
Justice Eady in rejecting its qualified privilege defence in an
action brought against it by Mr Jameel over allegations of support
for Al Qaeda. In particular the Wall St Journal sought to
persuade the Court of Appeal that the judge had misdirected the
jury as to the application of the presumption of falsity to the
defence of qualified privilege, that he had applied the wrong test,
and that the presumption that the Wall St Journal had suffered
damage was incompatible with Article 10 of the
Convention.
The Court of Appeal confirmed that the test was whether the
publisher had acted as a responsible journalist in publishing the
article. That would be assessed on how the position would
have appeared to the publisher at the time of publication.
The truth or otherwise of the article was not normally relevant,
but the jury had to be directed to presume that the defamatory
allegation was false when considering liability and damages, while
not applying that presumption when resolving issues of fact to be
considered in deciding whether the defence of qualified privilege
should not apply.
The Court of Appeal affirmed Mr Justice Eady's conclusion that
the phrase 'responsible journalism' was insufficiently precise to
be the sole test for this form of privilege, and that not only had
responsible journalism to be demonstrated, but the subject matter
of the publication had to give rise to a public interest that it
should be published. It was not sufficient that the public
might be interested in receiving the information. The
Court of Appeal held that the responsible journalism test required
a belief on the part of the journalist in the truth of the
article's defamatory implications, which accordingly has become a
further obligation on the part of the defendant.
The constitutional difficulty with the Reynolds defence is that
if it is established by the publisher by virtue of his Article 10
rights, then the Article 8 right of the claimant to his reputation
is lost. This can have catastrophic financial and personal
consequences for an individual, and can be equally devastating for
a corporation. It appears that the Court of Appeal recognised
this in setting the threshold of responsible journalism at a high
level in order to keep a proper balance between the Article 8 and
Article 10 rights which are engaged in such cases.
Jonathan Coad
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