Legal Briefing

Stop the press:the Reynolds defence

The In-House Lawyer Logo

Technology, Media and Telecoms | 01 December 2009

Reynolds v Times Newspapers Ltd & ors [2001] established a new defence for libel claims in which the story is in the public interest and the publisher acted ‘responsibly’. The Reynolds defence is designed to protect serious investigative journalists acting in good faith and reporting on matters of public interest. Even where allegations are false and hugely damaging to the subject of the publication, publishers can make use of this defence. However, Reynolds has also provided a useful tool for subjects to delay, if not prevent, publication of defamatory allegations.

Interim injunctions

As a general rule, defamatory allegations cannot be restrained at an interim stage by way of an injunction. A claimant will not be granted an interim injunction where a defendant intends to plead justification (ie that the allegations are true), unless it is plain that the defence will fail (see Bonnard v Perryman [1891] 2 Ch 269). This is a high hurdle for an applicant to overcome and, consequently, interim injunctions to restrain the publication of defamatory material are rarely granted. The rationale behind the principle is the importance of leaving free speech unfettered. The legal system of England and Wales operates on the basis that a person is free to publish material of their choosing but, if its content is later found to be defamatory and indefensible, then the publisher must compensate the wronged party. (This approach is sometimes described as ‘publish and be damned’.) If an applicant were able to stop a respondent from exercising its freedom of expression merely by making an argument on the basis of the limited evidence available at the interim stage, it is likely that the respondent could not prove its allegations to be true, seriously weakening the effect of Article 10 of the Human Rights Act 1998. However, the principle can lead to injustice for those that find themselves on the receiving end of a threat to publish spurious allegations. In these circumstances, it is obviously preferable to ensure that the story is never published rather than for the subject to sustain damage to their reputation that must be repaired in defamation proceedings. There are signs that the courts are willing to impose certain safeguards to ensure that applicants are not unduly prejudiced by the application of traditional rules. Following Sunderland Housing Company & anor v Baines & ors [2006], the respondent’s bare assertion that it intends to justify the allegation is insufficient to bar the grant of an injunction. Instead, a respondent is now required to:

  1. i) identify the defamatory meaning that it intends to justify; and
  2. ii) make clear in a witness statement verified by a statement of truth that it believes in the truth of the words in that meaning. If a respondent fails or refuses to do so, the applicant can ask the court to draw the inference that the defence is not viable and is therefore bound to fail. If the court is persuaded of this fact, it may grant the applicant an injunction to prevent publication.

ten Reynolds points

Of course, applicants always have the opportunity to seek an injunction if they are independently able to show that the publisher’s defence is bound to fail. This may be possible in clear-cut cases where an allegation can be conclusively disproved by empirical evidence in the applicant’s possession. Where this is not possible and subjects are faced with the prospect of the imminent publication of defamatory allegations, the precedent established in Reynolds may go some way in minimising the damage. Reynolds introduced a ten-point test of what constitutes responsible journalism (see box on p59). Knowing the ten Reynolds points can be a very useful tool if you are approached by a journalist or other publisher who wishes to publish damaging allegations about you or your company. For instance, you can ask them to put the detailed allegations to you in writing; challenge the independence of their sources; query what steps they have taken to verify the allegations; and inform them of why the matter is not urgent (as there are few cases where there is a real urgency to publish). Reminding the publisher of the requirements of responsible journalism can often buy 24-48 hours. This delay could ensure that the story is never published, as the newspaper has moved on to a ‘softer’ target or, if the story is published, the allegations appear in a less damaging form.

Jameel & ors v Wall StreetJournal SPRL Europe [2006]

The first major use of the Reynolds defence came in the case of Jameel. The Wall Street Journal Europe (WSJE) had published an article alleging that Jameel was involved in the funding of terrorism and had links to Osama bin Laden. Notwithstanding the fact that these allegations were false, WSJE still succeeded in relying on the Reynolds defence in its appeal to the House of Lords. The law lords accepted that the story involved a matter of public interest and was handled responsibly in the cause of serious investigative journalism. Crucially, the law lords also determined that the Reynolds test was being applied too strictly by judges in the lower courts. They held that judges were frequently treating each step as a hurdle that the publisher had to clear when the ten points should be applied more loosely and serve as a general pointer to the publisher’s conduct. Following Jameel, it appeared that failing to satisfy one of the criteria would no longer be fatal to reliance on Reynolds. There have been a handful of cases since Jameel that have further developed the Reynolds defence.

Seaga v Harper (Jamaica) [2009]

In Seaga, the appellant, Edward Seaga, could not rely on the Reynolds defence as he had not sought to question the correctness of the sources of the information used by the publisher, nor had he contacted Leslie Harper or his colleagues. In essence, the Court held Seaga had not behaved responsibly. Importantly, the Court determined that Reynolds was not to be confined to traditional print media. Any publisher could rely on it so long as the subject matter of their publication was in the public interest and they complied with the ten-point Reynolds test. It was confirmed that the Reynolds test should not be regarded as ten hurdles but, instead, the standard of journalism or conduct required should be applied in a practical manner and have regard to reality.

Malik v Newspost Ltd & Ors [2007]

In Malik, Shahid Malik was a Labour MP suing Newspost Ltd on the basis of information provided by Jonathan Scott, who was a conservative councillor. Malik claimed that two of the defendant’s publications had accused him of criminal interference with elections, depicting him as a racist or dangerous extremist who was not fit to hold public office. The defendants attempt to rely on the Reynolds defence was rejected by the court on the basis that the publications did not qualify as the investigative journalism that the defence had been designed to protect. The subject matter of the publications was undoubtedly in the public interest, but this alone did not make it in the public interest to publish any such allegations without taking into account their veracity. Had the newspaper taken steps to verify the factual basis of the accusations, such as contacting Malik for his side of the story before publication, then they may well have been able to rely on the Reynolds defence.

Flood v Times Newspapers LTd [2009]

The recent Flood has further developed the Reynolds defence. Flood concerns an online publication that has become false and defamatory due to subsequent events. The first publication alleged that Gary Flood was the subject of an internal police investigation concerning the leak of Home Office extradition documents relating to Russia’s most wanted criminal suspects. Although Flood was being investigated at the time of publication, the investigation later found no evidence to support Flood’s involvement. The Times did not publish the outcome of the investigation and left its original article online. The court held that, at the time of publication, Times Newspapers would have been able to rely on the Reynolds defence, as the matter was clearly in the public interest. The police had confirmed that Flood was being investigated and publication was a proportionate interference with Flood’s right to protection of reputation. However, the paper’s failure to remove the article from its website after it had become aware of the outcome of the investigation was not responsible journalism and the defendant could no longer rely on the Reynolds defence. It was neither in the public interest, nor fair, that there should continue to be an online record of old, unsubstantiated allegations. It was held that it was not in the public interest to defame the reputation of public figures.

 

Ten Reynolds Points

Gravity

If an allegation is serious and untrue, the harm is more serious.

Public interest

Distinguish between stories in which the public are interested and the real test of public interest: whether the story is properly a matter for public debate.

Source

Some informants have no direct knowledge of the events; some have an axe to grind or are being paid for their stories.

Verification

What steps have been taken to check the truth and reliability of the source authority?

Status

The allegation may have already been the subject of investigation that commands respect. Journalists must take great care with gossip or innuendo.

Urgency

The urgency of the matter must be real and unrelated to the publisher’s print deadline or desire for a scoop.

Comment

Whether comment was sought from the subject of the article.

Gist

Whether the article contained the gist of the subject’s story.

Tone

A newspaper can raise queries or call for an investigation. It need not adopt allegations as fact. Is the article sensational or neutrally reported?

Circumstances of the publication

This can be used to point out any other reasons why the journalist has not acted responsibly.

Contributing Firm

Author image The Legal 500

Author(s)

  • Laura Tyler, Associate solicitor, Schillings

    Laura Tyler

    Associate solicitor

  • Samantha Domin, Solicitor, Schillings

    Samantha Domin

    Solicitor