Libel reform campaigners have long argued for the inclusion of a “strong public interest” defence in the Defamation Bill. The current version of the Defamation Bill contains, in clause 4, a defence of “Responsible Publication in the Public Interest” – which is a codification of the common law “Reynolds” defence. Although this is not wholly satisfactory it does, at least, focus attention on the need properly to investigate and verify allegations before publication.
Libel Reform Campaign Proposal
This codification of Reynolds has not satisfied the Libel Reform Campaign which, in June 2012, organised a “Mass Lobby for a Public Interest Defence”. The Briefing Note for MPs [pdf] produced by the campaign does not actually set out the terms of their proposed alternative public interest defence. It appears, however, that this is intended to be additional to the “responsible publication” defence and is intended to provide a complete defence to a claim for libel if three conditions are satisfied, namely that
- The statement complained of was in the public interest; and
- The publication was not malicious; and
- The publisher offered an adequate right of reply or correction.
This defence was, apparently, designed to be
“clear and simple, and available and of benefit to writers such as Dr Simon Singh and Dr Ben Goldacre (who were both seeking to discuss misleading claims in health care) which is not the case under the current common law, nor under the proposed statutory defence”.
But the problems with this defence are obvious. It will not provide proper protection for those who have been defamed and it will not do the job for which it is, apparently, designed.
First, as was pointed out by Gavin Phillipson on Inforrm with reference to the McAlpine case it provides very limited protection against damage to reputation. An honest but incompetent investigator can make misconceived allegations of the utmost seriousness and will have no liability provided that an appropriate apology is made. The fact that the person defamed might have suffered serious distress, abuse from third parties or substantial financial loss will not make any difference. An honest but ill thought out repetition of an allegation of the most serious wrongdoing would, apparently, give rise to no claim of any kind provided the accuser offered an appropriate right of reply and correction – presumably after demanding proof that that claimant had not committed the wrong in question.
Second, the defence is neither clear nor simple. There will be disputes over “public interest” and “malice”: if someone wishes to misuse defamation proceedings to attack scientists or bloggers then this defence will not stop them, the claimant will deny public interest and allege malice. Furthermore, there will, inevitably, be arguments and litigation on the question as to whether a particular right of reply which has been offered is “prompt” and “adequate”.
The defence will not be a “magic bullet” which will provide straightforward protection to scientists discussing misleading health care claims,or anyone else. It will not, as the Libel Reform Campaign suggests, avoid the need for lawyers. Anyone who has been involved in a dispute about the terms of a correction or apology will know that even where there is no dispute about liability this can take a considerable period of time to resolve. The position will be even more complex when the publisher does not acknowledge falsity. In reality, arguments about whether a correction is appropriate will involve lawyers, more costs and an additional layer of complexity.
The Lester/Neill Alternative
The obvious deficiencies in this proposed public interest defence has led some supporters of a “Strong Public Interest Defence” to suggest an alternative. This was advanced by Lord Lester in the recent House of Lords debate on the Defamation Bill. Lord Lester formulated the new defence in this way
“First, it might say that it is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest. Secondly, in the case of publication for the purposes of journalism, the court shall, in determining whether the requirements of (a) and (b) are satisfied, give a wide discretion to the editor or other person responsible for the publication as to the content of the statement, the form in which the statement was made and the timing of the publication … Thirdly, for the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Fourthly, a defence under this section shall not succeed … if the claimant shows that he asked the defendant for the publication of a correction of the statement complained of and that the request was unreasonably refused or granted subject to unreasonable conditions”
In other words, a publisher will have a complete defence if four conditions are satisfied:
- The statement complained of was in the public interest, and
- The publisher honestly believed that the making of the statement was in the public interest, and
- The publisher reasonably believed that the making of the statement was in the public interest, and
- The publisher published a correction or reasonably refused to publish one.
The first thing to note about this defence is that there is no requirement that the publisher believes that the defamatory statement is true. Truth has disappeared from the defence entirely. All that is now required is that the publisher honestly and reasonably believes that publication is in the public interest.
In relation to the Reynolds defence the “public interest condition” is easy to satisfy and, in the absence of further statutory provision, this approach will be carried forward into the new defence. Thus, any publication which concerns matters such as the conduct of politics or business, the investigation of crime or the misconduct of those in the public eye will be sufficient. For example, it is arguable that the condition would be satisfied in all the libel cases in which judgment has been given after a trial in 2012. It is clear that the “public interest” condition would have been satisfied in Rothschild (conduct of a prominent businessman), Cairns (allegation of match fixing), Bento (allegation of murder), El-Naschie (allegation against a scientist). It is probable that the condition would also have been satisfied in Boyle (allegation of racism against a prominent comedian) and Joseph (allegation of a cavalier attitude to contracts). As a result, the satisfaction of the first condition is likely to be straightforward in most cases.
Furthermore, in most cases it will be impossible for a claimant to show that the defendant did not honestly believe that the publication was in the public interest. The burden of proving a lack of honest belief is a high one and is rarely surmounted. It is highly likely that in all the 2012 cases mentioned the “honest belief condition” would have been fulfilled.
What then is added by the third condition – the requirement that the belief that publication of the statement is in public interest should be reasonable? This was discussed by Professor Alastair Mullis and Dr Andrew Scott in a recent post on Inforrm. They argued that
“The assessment of whether a journalist’s belief was reasonable would involve essentially the same analysis in terms of pre-publication behaviour as that which currently is applied under the Reynolds defence. The question would be how the belief was reasonable, rather than how the journalism was responsible. A well-resourced journalist could not reach a reasonable belief that publication was in the public interest without first having done what an ethical journalist should do to stand up a story. The position, and hence the expectation, would clearly be different in the case of the garret-room blogger or ‘below-the-line’ commenter”.
It is, unfortunately, difficult to find any textual support in the proposed amendment for this analysis. The focus of Reynolds and that of the proposed new defence are entirely different: Reynolds is about verification and truth, the new defence is about public interest. A person can reasonably believe that the publication of a statement in the public interest without taking steps to verify its truth. On the contrary, the new defence has been expressly devised to replace the common law requirement that there be reasonable verification. No court is going to re-impose this abandoned requirement as an implied conditions of “reasonable belief”.
If, for example, a journalist is told by a source that that he believes to be reliable that a leading politician is corrupt, the journalist could reasonably believe that it was in the public interest to publish such an allegation without further investigation into its truth. It could even be argued that it was reasonable for a journalist to believe that publication is in the public interest where he has no positive belief in its truth but simply believes that because of its seriousness it is an allegation which should be published.
The test of “reasonable belief” is not a difficult one to satisfy: it is simply a belief which is based on rational grounds that is, one which is not capricious or irrational. There are a range of different possible “reasonable” views as to whether a particular publication is in the public interest. As long as the belief is within this range, the defence will succeed. The spectrum of possible reasonable views is widened – and the defence further weakened – by the explicit reference to the wide discretion given to the publisher as to the form, content and timing of the statement.
Finally, the proposed new defence also contains the “reasonable reply and correction” condition which I have already mentioned. In practice, if a publication is in the public interest and the publisher honestly and reasonable believes that it should be published then it is likely to be very difficult to establish that it is unreasonable to refuse a correction. The determination of this issue is not, on any view, going to be “clear or simple”.
In short, the proposed new defences provides very little protection for the right to reputation. They also fail to provide the kind of “clear and simple” strong public interest defence which the Libel Reform Campaign is seeking. Despite the problems it has generated, a “codified Reynolds defence” remains the best public interest libel defence which is presently on offer.