Qualified privilege reform: Reynolds, Flood and the draft Defamation Bill
The Supreme Court's judgment in Flood v Times was given three weeks after the Government published its response to the Joint Committee's report on the Draft Defamation Bill. We therefore compare the existing post-Flood position with the current draft of the Defamation Bill.
This comparison is important as the existing Reynolds defence will be explicitly repealed by the responsible publication on matter of public interest defence set out in the Bill. If enacted, this is likely to lead to arguments in court surrounding the weight and status of earlier decisions in cases such as Reynolds, Jameel and Flood.
The key test
The judgment in Jameel seems to require two elements to be considered: (i) whether the material is in the public interest; and (ii) the conduct of the journalist.
In Flood however, at least three of the Supreme Court judges suggested that, at present, the primary test is that of whether the publication is in the public interest. Lord Brown summarised his view in Flood when he stated "the judge […] is deciding but a single question: could whoever published the defamation given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?". Lord Clarke agreed. Lord Mance submitted that the public interest factor is the pre-eminent element of the test on the basis that publication of material that was not the product of responsible journalism is highly unlikely to be in the public interest.
The Bill clearly sets out a two-limb test, the defendant needing to show that (a) the statement complained of is, or forms part of, a statement on a matter of public interest; and (b) the defendant acted responsibly in publishing the said statement. In doing so, it represents a return to the position in Jameel. In assessing the second limb of this test, the court may take into account the non-exhaustive list of factors contained within the Bill.
Responsible journalism and the factors
A criticism of the existing Reynolds position is that the list of ten factors to be considered has sometimes been treated as a checklist or series of hurdles. This has contributed to making the defence uncertain, complicated and expensive to run. It has in fact always been a non-exhaustive list, and the Bill reinforces this principle by setting out a list of factors that may be considered amongst other matters.
The list of factors in the Bill is to be used in determining whether the journalist has acted responsibly, and not in determining whether the statement is on a matter of public interest. The extent to which the statement is of public interest is however one of the proposed factors the court may consider when assessing whether the journalist has acted responsibly. This is in line with the Flood decision in which the fact that the allegations related to suspected police corruption concerning the extradition of Russian oligarchs was "of great public interest" and a key factor in the Supreme Court's decision. The court will thus need to consider where a particular matter lies within the spectrum of public interest stories.
The Bill would therefore further encourage courts to consider all relevant factors in applying the responsible journalism test – something which the Flood judgment should also achieve in the meantime.
The eight indicative factors listed in the draft Bill are derived from the ten in Reynolds, although there are likely to be certain changes including:
- the status of the information is no longer expressly included;
- urgency will no longer be included – this is a welcome change as it can be difficult for a defendant to show that publication on a particular date was urgent when this question is being considered in court many months or even years later and with the benefit of hindsight;
- a new general factor is included – the nature of the publication and its context.
The addition of this last factor is also welcome. It should encourage the court to consider:
- the different nature of a national newspaper compared to an online blog or a scientific journal;
- the difference in tone depending on the type of publication; and
- the level of editorial judgment that is required/expected of a certain type of publication – newspaper articles for example are edited, whereas a blog may not be.
If it is passed, the Defamation Bill would represent evolution rather than revolution of qualified privilege. The Bill largely codifies and reinforces the original principles from Reynolds and the subsequent development of these principles in Jameel and Flood. If Flood had reached the Supreme Court after the enactment of the draft Bill, it is likely the decision would have been the same.
"The Defamation Bill builds on Flood and continues the evolution of this area. If Flood had been tested under the proposed regime, it is likely that the outcome would have been the same."
"If it is passed, the Defamation Bill would represent evolution rather than revolution of qualified privilege."