In 1999 The House of Lords made a seismic change to the law of defamation. Its effect was to fortify the power of Fleet Street to libel individuals for profit without sanction, thereby both fundamentally undermining their human rights and permitting the press to persist in promulgating any falsities favoured by editorial agendas. This aberrant judicial law-making was justified by the most monumental intellectual dishonesty.

Just as IPSO was thrust upon us by the might of Fleet Street to retain its lack of accountability, so was this judicial aberration. News UK was the agent of a change to the law which both fundamentally undermined the right of the individual not to be robbed unjustly of their reputation by immensely powerful media corporations, and the right of the public to protected when the media fails in its primary task; to inform us faithfully about national and international events.

Reynolds undermines both Articles 8 and 10

This was the decision of the House of Lords in Reynolds v Times Newspapers [2001] 2 AC 127 to which I referred in Part 1. The effect of the defence was that even where the publication concerned a matter of public interest there was no remedy either for the victim of that publication, or for the public who had been misled thereby, where a court determines that there was in fact a public interest in the publication – despite it being both false and defamatory.

This was a fundamental assault on the Article 8 right both to privacy and reputation which, to be consistent with the terms of that right, must be “necessary in a democratic society”. The suggestion this is necessary for this “democratic society” to accord such a defence to (inter alia) Associated Newspapers, owned by DMG Media which recently reported revenue of £652 million, is absurd.

Article 10 includes right to receive “information” – which I take to mean genuine (i.e. true) information, which also accords with the dictionary definitions I have found. I have looked in vain for any judicial or legislative use of the term which suggests otherwise. Reynolds also undermines that right.

The Article 10 right also “carries with it duties and responsibilities, [and] may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others…” It is blindingly obvious – at least to me – that it is “necessary [for] a democratic society” that it be told when it has been misled by the press on matters of public interest.

This was also apparently evident to the House of Lords in Reynolds. To quote Lord Hobhouse:

“The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society”.

Reynolds in all its lunacy

The legal absurdity of this defence emerges most clearly from the speech of Lord Hobhouse in Reynolds, which I quote in Part 1, where he said; “No public interest is served by publishing or communicating misinformation”.

However, that is precisely the effect of the Reynolds defence. Its absolutist nature was chillingly and succinctly put by Lord Hoffman in his leading speech in Jameel v Wall Street Journal: [2007] AC 359

“The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds Defence.  It is a neutral circumstance.  The elements of that Defence are the public interests of the material and the conduct of the journalists at the time.” [62] (emphasis added).

The practical effect is therefore that for a claimant who has been seriously libelled by a national newspaper, which has also misled its readers and millions of others if the libel is published on the front page, has no remedy if by the unilateral election of the publisher the Reynolds defence is deployed, at which point the truth or falsity of the allegations ceases to be addressed by the court which merely determines whether there was a public interest in the publication.

At a stroke the claimant loses the right to secure vindication, and the public loses their right to be disabused of information which may be wholly false. What is the practical value either to the claimant or public of a determination by the court that the allegations were published outwith the terms of the Reynolds defence – or “Publication on a matter of public interest” as it is now in section 4 of the 2013 Defamation Act?

Worse still, if the defence is upheld – despite the allegations being false and defamatory – the impression is given to the public that those allegations are in fact true.

 The statutory incarnation of the Reynolds defence

Section 4, which was intended to strengthen the Reynolds defence, provides a complete defence to false and defamatory allegations where the defendant established:

  • “The statement complained of was, or formed part of, a statement on a matter of public interest; and
  • The Defendant believed that publishing the statement complained of was in the public interest.”

One of the absurdities of this defence is that it is flatly contradicted by all the industry codes, which I cite in Part 1, that stress the need for the publication of a correction where the public has been misled.  Apparently both the judiciary and legislature know better.

The impact of the defence

Here from my book Reputation Matters is an illustration of the impact of the defence its common law incarnation:

In 2004 Colonel Campbell-James was wrongly accused by the Guardian of being involved in the appalling abuse of Iraqi war prisoners in the Abu Ghraib jail. Not only was he not at the jail at the time, he was not even in Iraq. This was not only a false allegation against a distinguished army office, it was also a serious allegation against his regiment, the British Army and the British State, the effect of which was to place other British soldiers serving in Iraq at risk of reprisals.

To its shame the Guardian initially cited the then common law Reynolds public interest defence (now Section 4 of the 2013 Defamation Act) as its justification for refusing to retract the allegation. Had it elected to run that defence Colonel Campbell-James would have been robbed of his right to vindication and a false story staining him, his regiment, the British Army and the nation as a whole would have stayed uncorrected. So much for it being a ‘public interest’ defence.

As Mr Justice Eady observed in his judgment, which merits reading in full and was damning of the Guardian: ‘It was not simply a matter of good journalistic practice [to publish a prompt retraction]; it was a matter of elementary human decency.’ Only grudgingly and belatedly did the paper retract the allegation and only paid damages when ordered to do so by a court.

An example from my practice concerned an MEP client accused by the Times of not declaring an interest on an issue about which he spoke in the European Parliament.  The client sent me all the relevant paperwork which proved that that the allegation was false; one that not only seriously affected him personally, but quite possibly would lead to his being voted out by his constituents. This is another instance of News International (as it then was) interfering with our democratic process.

I explained to my astonished client the effect of Reynolds and that the only remedy was via the then press regulator (Press Complaints Commission), to whom I made a complaint.  I demolished the article line by line, but despite that the PCC refused to uphold the complaint, leaving the client with no remedy either from the regulator or the law, and his constituents none the wiser.

The law as it should be

The Section 4 defence should (if at all) go only to the measure of damages, operating like the Offer of Amends regime whereby the court would take the Section 4 elements into account when assessing damages but allowing the claimant to establish both for his benefit and that of the public that the allegation in question was false.

It is however incomprehensible to me why the “cost” of a transgression by a newspaper group such as Associated Newspapers should be borne by its victim rather than its perpetrator. How can this possibly be “necessary in a democratic society”?

Conclusion

Since the law has declared truth to be a mere “neutral circumstance” we are entirely dependent on IPSO’s regulation of most of the major Fleet Street titles for us both to be told the truth and disabused when we are misled.

Since IPSO – as I explain in Part 1 – so utterly fails in this respect, then we are at the mercy of the editorial whims of Fleet Street which, as we know, is capable of exhibiting scant regard either for the truth or the law.

Jonathan Coad is a media lawyer who acts both for claimants and defendants

This Part 2 of a two part post.  Part 1 was published on 21 October 2025