Australian academic, Jason Bosland has written an article entitled “Republication of Defamation under the Doctrine of Reportage – The Evolution of Common Law Qualified Privilege in England and Wales” (available on SSRN and forthcoming in the Oxford Journal of Legal Studies).
He summarises the doctrine as follows:
“The ‘doctrine of reportage’ …essentially provides a defence for the republication of allegations originally made by a participant to a dispute or controversy of public interest. Repeating a defamatory allegation, subject to any other defence, would usually give rise to liability on the part of the republisher. Under the reportage defence, however, liability will be avoided where the republisher does not adopt or present the repeated defamatory allegation as fact, but instead simply republishes the allegation as part of a story that has the effect of reporting, in the public interest, the fact that the allegation has been made”.
However, he see considerable difficulties in the analysis of this doctrine presently favoured by the English Courts. Contrary to the approach of the Court of Appeal in Roberts v Gable ( EWCA Civ 721) he argues that the doctrine should not be seen as a mere application of ‘classic’ Reynolds privilege. Instead, he argues, defence is doctrinally distinct from Reynolds privilege: whereas the latter focuses on the conduct of the journalist in relation to the truth of the allegations published reportage is not concerned with the truth or falsity of the allegations but with the public interest in reporting the fact that they have been made.
After discussing the decision in Roberts, he points out that:
“the ‘core’ Reynolds factors – have no application in the reportage context. The conduct of the journalist, and the circumstances leading up to publication would appear to be, effectively, irrelevant”.
He draws attention to the fact that the only “Reynolds factors” which appear to be relevant in a “reportage” case are “tone” and “public concern” and suggests that the defence is made out if five conditions are fulfilled:
1. the information published (ie the story that the allegations have been made) is in the public interest;
2. the allegations are made by one party to a dispute or controversy, A, about another party to the same dispute or controversy, B, although the published allegations need not be bilateral;
3. the publication, judged as a whole, has the effect of disinterestedly and fairly reporting the fact that the allegations have been made, including their substance;
4. the allegations are attributed to their source; and
5. the publication does not adopt or embellish the allegations.
Focus on these are factors as the essentials of the “reportage” defence makes it clear that
“the protection afforded by reportage can be described as arising not from the occasion or circumstances leading up to publication but from the publication per se”
Bosland argues that while Reynolds is concerned with truth, reportage is concerned simply with the fact that the allegations have been made. As a result he suggests that
“the doctrine of reportage might be best viewed as much more akin to the common law fair and accurate report privilege than as an offshoot of Reynolds”.
As a result of this analysis, he concludes
“that the defence should be given a particularly narrow interpretation – one that is closely focused on scenarios where the public has an interest it the fact that the allegations have been made and not simply, as the defence has been otherwise interpreted, where the allegations themselves relate more broadly to a matter of public concern. Any other approach is likely to lead to a defence that is unsurpassed in terms of strength and scope and goes beyond, at least in this author’s opinion, what is necessary to achieve the apparent aims of a properly considered reportage defence”.
It is interesting to consider clauses 1(5) and (6) of Lord Lester’s Defamation Bill in the light of this analysis. These clauses treat “reportage” as facet of “responsible journalism” (that is the statutory equivalent of Reynolds). They provide that
“(5) Where a publication reports accurately and impartially on a pre-existing matter (for example, that there is a dispute between two parties), a defendant may be regarded as acting responsibly to the extent that the court is satisfied that it is in the public interest for the existence of that matter, and anything reported in connection with it, to be the subject of a report or series of reports.
(6) In determining for the purposes of subsection (5) whether publication is in the public interest, the court may disregard any question as to the truth of anything reported in connection with a pre-existing matter”.
On Bosland’s analysis these clauses are based on a fundamental misconception of the nature of the “reportage” – they do not focus on the public interest in the fact that the allegations have been made but extend to reporting all kinds of “pre-existing matters”.
The article is an important contribution to the debate on the nature of “responsible publication” and reportage and we commend it to our readers.