In the media spotlight
How Reynolds privilege can help with correcting a potential newspaper story prior to publication.
Imagine you discover that a newspaper journalist is writing a story in which you will be featured. From what you have heard, it sounds as though the story is going to make untrue, defamatory allegations about you, but you fear the newspaper is determined to go ahead and publish because it believes the story is accurate and in the public interest. What can you do?
The English courts are rarely willing to grant an interim injunction pre-publication to protect an individual's reputation (unlike, for example, where private information is at issue). Usually, therefore, the individual must wait until the article has been published, and then consider whether to sue for libel after the event.
However, there may be steps that can be taken before publication. A journalist may well contact the subject of a story in advance, especially where the journalist believes the story is in the public interest, because of the libel defence of "Reynolds privilege". Such an approach provides a valuable opportunity for the individual (whether directly or through their lawyers or PR agents) to try and engage with the journalist/newspaper and correct or prevent any false allegations before they are published.
What is Reynolds privilege?
Reynolds privilege is a defence to libel which protects the publisher of an untrue or unproven defamatory allegation where (i) publication is in the public interest and (ii) the test for responsible journalism has been met. It can be an important defence for the mainstream media. It was considered most recently by the Supreme Court in Flood v Times Newspapers in March 2012.
The public interest requirement
The defence only applies where publication of the information is in the public interest. A prospective claimant may, therefore, try to persuade the journalist that the story is not in the public interest – for example, that it is mere unsubstantiated gossip or a private matter.
There are no hard and fast rules on what is "in the public interest". The main cases on Reynolds privilege have tended to concern facts where the public interest is fairly self-evident. For example, in Flood, the allegations concerned police corruption – clearly something that is of concern to society in general.
Public interest is more likely to be found where the subject of the story acts in a public context, such as a politician or other public official, or even a celebrity. Public figures may have to work harder at rebutting any untrue allegations.
In the leading case of Reynolds, Lord Nicholls proposed a non-exhaustive list of ten factors which may be taken into account by the court, depending on the circumstances, when assessing whether the article in question is protected by Reynolds privilege. A prospective claimant may find that these factors can work in their favour – for example:
- Steps taken to verify the information. To rely on Reynolds privilege, the responsible journalist must generally have taken sufficient steps to satisfy themselves that the information is true. A prospective claimant could therefore seek to persuade the journalist that the evidence and sources lack credibility, and provide evidence and sources of their own with more credibility.
However, the recent decision in Flood suggests that there are limits to the extent that the publisher needs to verify, depending on the meaning of the article. For example, where a journalist alleges that there are grounds for suspecting that a person has been guilty of misconduct, the court has indicated that a responsible journalist would need to be satisfied that those grounds exist (it could, for example, be inferred from the fact that there is a police investigation into the alleged misconduct). However, the journalist does not necessarily need to know what those grounds are.
- Whether comment was sought from the individual concerned. This factor means that a journalist is more likely to approach the subject of a story for comment, although an approach is not always necessary for Reynolds to succeed, depending on the circumstances. The individual may decide to give some comment "on the record", with other information given "off the record" in order to assist the journalist by way of background only. This will be the opportunity to explain the position and professional advice should be sought.
- Whether the article contains the gist of the individual's side of the story. This puts the onus on the publisher to ensure that their article is balanced, again increasing the likelihood that the subject of the story will be contacted in advance for comment.
While Reynolds privilege allows some leeway for editorial judgment, the defence is unlikely to be available where there is an indication that the editor or journalist executed their professional judgment in a "casual, cavalier, slipshod or careless manner".
What does it mean for a potential claimant?
Reynolds privilege, as a defence to a libel claim, primarily benefits the media. However, the requirements of public interest and responsible journalism can also help an individual who may find themselves the subject of media attention.
Getting in early and mitigating the risk can often mean there is no need to revert to legal action later. Journalists may be more willing to listen and correct their story than might be thought. After all, an inaccurate article can reflect badly on the journalist and publisher.
"While Reynolds privilege is primarily of benefit to the media, the emphasis on responsible journalism may help a potential claimant to correct or prevent any inaccurate allegations prior to publication."
"Reynolds privilege, as a defence to a libel claim, primarily benefits the media. However, the requirements of public interest and responsible journalism can also help an individual who may find themselves the subject of media attention."