In earlier posts I have dealt with general concerns about the Defamation Act 2013, concerns about section 1, “Serious harm” and the new statutory defences of “truth” and “honest comment” in section 2 and section 3. In this post, I continue setting out concerns with the Defamation Act 2013 by looking at the public interest defence in section 4.
This section seeks to reproduce the existing law, however it does not do so as clearly as it might. The case law which has developed through most of the common law world and in Strasbourg since the decision in Reynolds v Times Newspapers has properly focussed on “responsible journalism” or, using the Strasbourg terminology, “the ethics of journalism“. This reflects a sensible and appropriate policy: journalists writing about matters of public interest should not be exposed to legal action if they act responsibly. However, this section avoids any express reference to the obligation on the defendant to undertake a reasonable and responsible investigation, concentrating instead on the concept of “reasonable belief“.
In Reynolds, there was no doubt that responsibility on the part of the defendant was a key element. At least five of Lord Nicholls’ so-called “ten commandments” related to the conduct of the journalist. Responsibility also remained key to all the subsequent cases, including the reasoning of all the Justices in the Supreme Court in Flood v Times Newspapers Limited  UKSC 11. The wording of section 4 appears to be derived almost verbatim from the opening sentence of paragraph 113 of the judgment of Lord Brown. However, read as a whole, there can be no doubt that Lord Brown fully agreed with the other Justices that responsibility on the part of the defendant was a crucial factor.
The issue of whether responsibility on the part of the defendant is a necessary component of this type of defence has been considered carefully in other common law jurisdictions.
- In Australia, the Defendant must have taken “proper steps, so far as they were reasonably open, to verify the accuracy of the material” and must “not believe the imputation to be untrue” (Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at page 118.)
- In Canada, in Grant v Torstar Corp 2009 SCC 61,  3, the Supreme Court laid out its the defence of “responsible communication”, incorporating most of the Reynolds factors relating to the conduct of the defendant.
- By contrast in New Zealand, there is no reasonableness requirement in the prima facie availability of the defence (Lange v Atkinson (1998) 4 BHRC 573), although evidence of irresponsibility can be adduced by the plaintiff to show that the privilege has been misused.
This may in fact be less a substantive concern than a practical one. In light of the obvious provenance of section 4 in Flood (the explanatory notes of the Act state expressly (para 29) that “The intention in this provision is to reflect the existing common law as most recently set out in Flood v Times Newspapers”), it seems very likely that the section would be interpreted as importing in an obligation of responsibility on the part of the defendant, even though it does not state this expressly. The difficulty is that if a potential victim is seeking pre-publication to insist that a journalist is required to undertake the usual responsible steps such as putting the allegation to the victim, there is no express wording in the statutory defence to refer to, in order to underline that requirement. At the very least, the victim must undertake some legal archaeology to explain that the requirement (arguably) exists. With the increased focus on responsible news reporting, it seems particularly curious that the express requirement for responsibility has been omitted.
This issue is easily remedied by introducing an express obligation that the defendant must act responsibly as follows.
Alternative Proposed Text
4 Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest; and
(c) in investigating and publishing the statement, the defendant acted reasonably and responsibly.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) 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.
(6) The common law defence known as the Reynolds defence is abolished.
Dan Tench is a partner in the Litigation Department at Olswang LLP