Lord Steyn’s Boydell Lecture – Defamation and Privacy

Lord Steyn gave the 3rd Annual Boydell Lecture on 26 May 2010 in Inner Temple Hall on the topic of “Defamation and Privacy:  Momentum for Substantive and Procedural Change” – (abandoning his announced title of “Litigation Tourism: Defamation and Privacy“).  The lecture focussed on the decision in Reynolds v Times Newspapers ([2001] 2 AC 127) – a case in which he was a member of the Judicial Committee.   In Reynolds he agreed with the rest of the Committee that a new form of “qualified privilege defence” should be available to the media – although he dissented on the facts, favouring a retrial.  In his lecture he was critical of the decision – pointing out that the subsequent decision in Jameel v Wall Street Journal ([2007] 1 AC 359) retained the basic Reynolds approach.  Lord Steyn concluded that

“As a matter of precedent Jameel did not amount to the much needed critical re-examination of Reynolds.   Unfortunately as matters stand, the Reynolds privilege will continue to complicate the task of journalists and editors who wish to explore matters of public interest and it will continue to erode freedom of expression”

In its place, he commended the approach the the Supreme Court of Canada in Grant v Torstar Corporation (2009 SCC 61) that there should be a “broad new privilege based on public interest”.

He then went on to consider a number of important arguments in relation to the reform of the law of libel raised by South African academic and practitioner Dario Milo in his important book Defamation and Freedom of Speech (OUP, 2008) including:

• the removal of the presumption of falsity;
• a requirement that a “lack of care” should be established in relation to defamatory public speech;
• a requirement that actual damage be established in cases of defamatory public speech

Finally, Lord Steyn came out against the idea of specialist libel judges – although without giving detailed consideration to the arguments for or against. Disappointly for some members of the audience, Lord Steyn did not have time to deal with the linked issues of privacy or the question of “balancing” Articles 8 and 10 – the modern approach to which of course derives from the opinion of Lord Steyn in Re S (A child) [2005] 1 AC 593

In answer to a question from journalist (and legal blogger) Joshua Rozenberg, Lord Steyn said that although in general he preferred organic development of the law, he thought that the law of libel required wholesale statutory reform.   He wisely ducked a question from the President of the Supreme Court Lord Phillips on the future of juries in libel cases. 

Overall, this in interesting and thought provoking lecture, rehearsing some familiar themes and introducting a few new ones.   It was very much in line with the arguments of “libel reformers” although, we anticipate, more radical than Lord Lester’s proposed bill.