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Re-Regulating Free Speech: Privilege, Public Interest and Privacy.
Kevin Williams
Principal Lecturer in Law
Sheffield Hallam University
Copyright © 1999 Kevin Williams.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
The freedom of citizens and the media to criticise the exercise of political and other sorts of power, without fear of having to pay libel damages if they get their facts wrong, has traditionally been very limited. However, change has been in prospect for some time. In 1993 the House of Lords declared that the public interest requires government bodies to be open to uninhibited, even wrong-headed criticism. Radically they were stripped of all rights to sue for defamation. In 1998 the Court of Appeal, recognising that the media have a duty to inform their audience about matters of genuine public interest, created a new form of qualified privilege which is available to those who attack the reputation of individuals engaged in the public life of the community. This new freedom to disseminate to the general public what may turn out to be false allegations comes at a price. For the first time, journalistic standards are to be tested not just for malice but for reasonableness in publication. This paper assesses the significance of reorienting libel law in this way so as to expand freedom of expression. It also considers where the freedom to criticise public reputations should stop and where respect for personal privacy begins. This issue is a pressing one bearing in mind that the Human Rights Act 1998 incorporates into domestic law the potentially conflicting rights of free speech and privacy.
Contents
- Introduction
- The effect of Derbyshire on the common law tradition
- The Reynolds Litigation
- Free Speech v Privacy
- Conclusions
1. Introduction
English law has not accorded free speech the status of a `primary right' which takes precedence over potentially conflicting rights and interests (see Kentridge 1996; Barendt 1989). Rather it has to be weighed against other considerations, such as the right to a fair trial, respect for confidences, and the protection of reputation. When striking the balance, English law has traditionally shown a strong preference for protecting reputation rights over free speech, and a disinclination to differentiate `political' from other sorts of speech. This may be due, as Fleming has suggested, to a deep scepticism (not shared by American courts) as to whether "uninhibited free speech is...the least costly way of disseminating worthwhile information", and "to a much more ambivalent attitude towards the blessings of the media" (Fleming 1988, p 93). However, Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 makes a decisive break with that tradition, confirming the constitutional significance of `political' or `public interest' speech and the special character of `public' reputations. Building on the decision in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, which held that government bodies could not sue at all for defamation, the Court of Appeal has created a new form of qualified privilege which protects the widespread publication of false information about an individual, so long as it concerns a matter of public interest to the community and was published reasonably and without malice. The court was anxious to ensure that the threat of liability in defamation should no longer stifle or `chill' public debate unacceptably. Published empirical research has confirmed that libel's chilling effects are real, albeit that they are not felt uniformly across all branches of the media (see Barendt et al 1997). Though not referred to in Reynolds, this research supports the judicial hunch that the conventional rules of strict liability had not struck the right balance. How much less chilling a negligence standard will prove to be, and how much more socially useful information will become publicly available as a result of the new privilege, is uncertain. Nonetheless, this reorientation is timely. It chimes with the rights-based approach to free expression in the European Convention on Human Rights, now part of domestic law, as well as bringing English law closer to the positions recently adopted in Australia(1) and New Zealand.(2)
The paper evaluates these changes and assesses their potential impact. It also makes suggestions as to how the courts might employ the concept of privileged publication in the public interest to reconcile the competing claims of free speech and respect for personal privacy. In an era when these potentially competing rights will be vying for judicial protection following implementation of the Human Rights Act 1998, the newly expanded privilege to utter damaging speech in the public interest cannot fail to be a controversial innovation.
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2. The effect of Derbyshire on the common law tradition
English law presumes all attacks upon reputation (whether political or private, individual or corporate) to be unwarranted and untrue, unless the defendant can show otherwise. Provable truth of fact and honesty of opinion have been the traditional touchstones of the common law. Only in the most exceptional circumstances might there be a privilege to publish defamatory statements, not provably true, to the world at large.(3) Similarly, fair comment on a matter of public interest is confined to cases where the defendant can show the factual basis of the comment to be true. The contribution of Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 was to recognise that discharging this burden might be impossibly difficult in practice, and then to act on it in order to better facilitate political speech. Lord Keith robustly asserted (at 548) that "quite often the facts which would justify the publication are known to be true, but admissible evidence capable of proving those facts is not available". Furthermore, said his Lordship, it is "of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech" (at 547). Because the result may be damaging self-censorship by the media to the impoverishment of political discourse - libel's so-called `chilling effect' - it was contrary to the public interest to continue to allow government to sue in defamation. The House accordingly created an absolute immunity to criticise the corporate reputation of government bodies. Imposing a blanket ban of this sort has been criticised because it allows the publication of material known to be false, willy-nilly alongside material believed to be true (Loveland 1998b). Nonetheless, defamation is now unavailable to such agencies, though they are free to sue in malicious falsehood. Given that plaintiffs must prove falsity, malice, and loss, actions in malicious falsehood are perhaps less likely to chill political speech.
In British Coal Corporation v National Union of Mineworkers (unreported, 28th June 1996) the reasoning in Derbyshire was extended so as to bar a libel claim brought by an unelected public body, then in the throes of divesting itself of its remaining assets following privatisation.(4) In Goldsmith v Bhoyrul [1998] 2 WLR 435, a political party, allegedly libelled while campaigning for office at a general election, was similarly held to be incapable of suing.
Although Lord Keith treated it as self-evident that government agencies should be open to "uninhibited public criticism", it is not equally self-evident that individuals involved in public affairs should be similarly treated and exposed to increased media scrutiny. After all, unlike governments, other public bodies or political parties, individuals have personal reputations, feelings to be hurt, and social relations capable of being damaged. In the event, Derbyshire stopped short of interfering with the right of individuals to sue in libel, though whether for this or other reasons is unclear.(5) This left English libel law in an unsatisfactory condition, for while government bodies and political parties had been barred from suing at all, individual politicians remained free to complain of adverse political speech, illogically since this may equally `chill' free speech.(6) Reynolds v Times Newspapers Ltd recognises and seeks to deal with this inconsistency. By emphasising the distinction between the `public' and `private' reputations of individuals, it attempts to balance respect for the former against the desirability of enhanced protection for public interest speech, while protecting the latter by excluding them from the scope of the new privilege it introduces.
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3. The Reynolds Litigation
Reynolds arose out of an article in the British edition of The Sunday Times concerning the collapse of the coalition government in Eire in 1994. It accused Albert Reynolds, who only days before had resigned as Taoiseach, of deliberately misleading the Dail and his coalition partners. At trial, Mr Justice French followed the conventional line. Neither the plaintiff's status as a leading political figure nor the fact that the allegations concerned the discharge of public duties were material to his cause of action. In a single judgment given by the Lord Chief Justice, the Court of Appeal held that the summing up to the jury had been so confused as to deny the plaintiff a fair trial.(7) More significantly, so far as concerns the development of free speech rights, the Court accepted that the widespread dissemination of factually false information concerning the manner in which politicians and (unelected) public figures discharge their public functions might be protected by a qualified privilege (although the newspaper's cross appeal was rejected on the facts as not falling within the scope of this newly formulated defence).
(i) The new test of privilege
In Toogood v Spyring (1834) 1 CM & R 181 at 193 Baron Parke had famously said that for a statement to be privileged it must serve the "common convenience and welfare of society" and be "fairly warranted by any reasonable occasion or exigency", meaning that there must be a duty to publish to the particular audience which, in turn, must have a corresponding interest in receiving the material.(8) Prior to Reynolds what was requisite for the public benefit was narrowly construed. In particular, conventional wisdom had it that there was no reciprocal duty or interest such as would ground a privilege in favour of erroneous(albeit honest) political dialogue between citizens generally.(9)
In contrast, Reynolds (at 909) concluded that the interests of a "modern plural democracy...are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community". Driven by this "modern democratic imperative", it poses a threefold test to identify whether any particular publication meets the public policy considerations in Toogood v Spyring. Then, as now, there must be a `duty' to publish to the particular audience, which in turn must have a corresponding `interest' in receiving the material. A new third component, the so-called `circumstantial test', requires that the statement must have been published in circumstances such that it is in the public interest that it should be protected in the absence of express malice.
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(ii) Duty and Interest
Seemingly, English courts must now be readier to accept that the conventional duty/interest elements are satisfied. Article 10 of the European Convention on Human Rights and its associated free speech jurisprudence, for example, dictate that in modern conditions of universal suffrage the appropriate audience may frequently be the public at large towards whom the news media, in particular, have a duty to discuss matters of public interest. The Human Rights Court at Strasbourg has attached the highest importance to the protection of political expression, seeing it as a central feature of democratic societies and of individuals' self-fulfilment. On this view, the media is not merely entitled, but bound "to impart information and ideas on political issues and other matters of general interest." (10) In Stephens v West Australian Newspapers Ltd (1992) 182 CLR 211 at 264 a similar conclusion was reached by the High Court of Australia. McHugh J explained :
"the quality of life and freedom of the ordinary individual...are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public monies. How, when, why and where those functions and powers are or are not exercised are matters of real and legitimate concern to every member of the community...So is the performance of the public representatives and officials who are invested with them..."
This is a version of the `argument from democracy'(11) which underpins the classic free speech decision of the US Supreme Court, New York Times Co. v Sullivan (1964) 376 US 254,(12) the two antipodean Lange cases, Derbyshire, and now Reynolds.
The difficulty presented in the past of demonstrating the twin requirements of duty and corresponding interest is exemplified by Blackshaw v Lord [1984] 1 QB 1. A newspaper, critical of the way a department of government had been run, was ordered to pay damages to a senior civil servant who had been targeted by the criticism. The Court of Appeal held there was no duty to publish an unproven allegation against an individual to the public at large who, correspondingly, had no legitimate interest to receive it. It was not material that it was believed to be true, that it concerned a matter of public interest, or that reasonable care might have been exercised. It was conceded that the general question of the waste of £52 million of taxpayer's money might be a matter about which readers of the Daily Telegraph had a proper interest, but the newspaper had no right or duty to point the finger of responsibility at any individual until the allegations could be "made out". At which point, of course, no defendant who is able to show justification would need to rely on a qualified privilege. On this view, defendants either proved the truth of the allegation or they paid damages, which is precisely why the House of Lords in Derbyshire decided it was necessary to unburden critics of government bodies of the obligation to show justification.
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(iii) The Circumstantial Test
Would Blackshaw be differently decided today? Maybe not, for there is no suggestion in Reynolds that it was wrong. Even assuming that post-Reynolds courts will be prepared to say that the duty and interest elements are satisfied, there is the `circumstantial test' to be passed. This asks (at 899):
"[w]ere the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice?"
`Status', said the Lord Chief Justice, denotes the degree to which information on a matter of public concern might (because of its character and known provenance) command respect. The higher the status of a report, the more likely it is to meet the circumstantial test.(13) Conversely, unverified information from unidentified or unofficial sources might have little or no status with the result that the publication of damaging statements based on such sources will impose on their publishers a correspondingly heavier burden of showing that what was said was justified. In Blackshaw the reporter was characterised as having wheedled off-the-cuff remarks about the plaintiff's alleged responsibility for the losses out of a government press officer. The court was clearly unwilling to accept that it was legitimate for the reporter to place reliance on these, saying ( at p 27) that he "took the risk" of what he had been told "turning out to be untrue." Investigative reporters who make few enquiries concerning doubtfully sourced stories run the same risk today(14). Even assuming that the statement is believed to be true, Reynolds (at 909-910) declares that :
"it is one thing to publish a statement taken from a government press release,(15) or the report of a public company chairman ... and quite another to publish a statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for."
It seems that `status', having formerly been part of the duty test, now operates as part of a separate circumstantial test, the other elements of which are an opportunity for rebuttal and the exercise of appropriate care, both taken from the Australian case of Lange v Australian Broadcasting Corporation (1997) 145 ALR 96.
Plainly sceptical that the media could be trusted with an uninhibited privilege to publish widely, the English and Australian courts have added to the traditional requirement for honesty, an obligation to act reasonably so as to protect those in public life from irresponsible, unsourced and uncompensated attacks.(16) Reynolds provides no further indication of what the circumstantial test entails beyond saying (at p 910) that it was probably little different in practice from the Australian concept. According to the Australian High Court in Lange (at p 116-118) ordinarily publication will not be reasonable unless:
(i) the defendant had reasonable grounds to believe, and did believe, that the imputation was true;(17)(ii) that he had taken such proper steps as were open to him to verify the accuracy of the material; and
(iii) that he had sought and published a response from the person defamed, unless either of these steps was not practicable or was unnecessary in order to give the plaintiff an opportunity to respond.
Thus, as part of asking whether the defendant was culpable, the Lange and Reynolds formulas build into the common law what might be seen as an advance `right of reply',(18) imposing on the media an obligation to seek out a response from the person defamed before publication. When the House of Lords in Derbyshire held that government bodies could not sue at all for defamation, it did so partly because they were said (at p 550) to have de facto access to publicity and to the press as a means of responding to criticism. This rule recognises that individuals are unlikely to be similarly well placed. Chesterman (1998) points out that this may cause publication to be delayed, particularly where the person attacked claims they need time to formulate a considered response, and may provide an opportunity to move for an injunction, especially if the attack is seen as an unwarranted intrusion into personal privacy.
By these means, publishers' beliefs, and their pre-publication inquiry and verification processes, have been opened up to judicial and jury scrutiny. At first sight a sensible balance appears to have been struck - protecting responsible investigative journalism while condemning reports where no proper efforts have been made to `stand the story up', as attempted verification is known in the British media. Yet the introduction of a novel requirement for due care is open to a number of objections, some of which were referred to by the New Zealand Court of Appeal in Lange v Atkinson and Australian Consolidated Press NZ Ltd (unreported, 25th May 1998, LEXIS transcript, at 39-40, 55-56), which rejected it. For example, it may be said that such a requirement renders the concept of malice largely redundant.(19) Alternatively, that negligence has traditionally formed no part of the common law of defamation. This is not entirely accurate(20) and, in any event, is hardly telling once a court is prepared to say that changes in the nature of representative government and elsewhere in society demand a fresh approach to free speech. A more convincing objection is that reasonableness may be dysfunctional to the extent that it frustrates the aim of `unchilling' public discourse by making litigation more likely, more protracted, and its outcome less predictable. Although those who comment on "matters of public interest to the community" will no longer need to prove their statements true, they will have to demonstrate an honest belief based on reasonable grounds, so exposing their sources and methods to lengthy investigation and unpredictable jury scrutiny long after the date of publication. The scope for second-guessing journalistic and editorial standards must be extensive.
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(iv) Protected speech
The new privilege only protects discussion of "matters of public interest to the community". By this is meant (at p 909) :
"matters relating to the public life of the community and those who take part in it, including...activities such as the conduct of government and political life, elections...and public administration...but we use the expression more widely...to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private. "
Surprisingly, the Court of Appeal rejected as "too narrow" the submission of counsel for Times Newspapers that privilege should be limited to "political speech or discussion", saying (at p 910) that many matters may affect the public interest and health of society more profoundly than the "small change of political controversy". This content based definition of protected public interest speech is not limited to defending claims brought by elected politicians, as has happened in New Zealand (see Lange v Atkinson, at 53-54). But it will require English courts to consider not only the status of the information itself, but also to consider the status and involvement of the individual in public life. Distinguishing `public' from `private' figures has proved to be a difficult and contentious process in the United States.(21)
It seems likely that the definition will cover stories concerning the activities of a wide variety of corporate entities and public agencies (insofar as such bodies are not already prohibited from suing by the Derbyshire ruling), as well as criticism of politicians, regulators, senior public servants, and the public activities of so-called private citizens, such as media magnates whose power to shape the political agenda and the conduct of public affairs is notorious. So too the public conduct of more humble citizens, to the extent that they opt to become engaged in public life.(22) Entertainers and celebrities (who are `public figures' for the purposes of US libel law), on the other hand, will continue to be free to sue in the usual way, unless they run for public office or otherwise become embroiled in matters of public concern.
It is also worthy of note that in an era of transnational publication, the defence may have an extra-territorial dimension to it. Thus, Australian TV viewers are entitled to be provided with highly critical comment on standards of political propriety in New Zealand, even though it throws no light on electoral choices in Australia or on the administration of the federal government (see Lange v Atkinson, at 115-116), while readers of a British newspaper are similarly entitled, at least in principle, to see damaging remarks about shenanigans in the Republic of Ireland (see Reynolds, at 869 and 911(23)): politics in the global village, as it were.
At the end of the day, the defendant newspaper in Reynolds was said to have satisfied the duty/interest elements by publishing an allegation which was a matter of public concern, namely an accusation that the plaintiff had deliberately misled the Irish parliament and his coalition partners. However, it failed the circumstantial test, principally because the source of its story was not regarded by the court as sufficiently "authoritative" (see p 911) and because the defendants gave the plaintiff no opportunity to comment upon it or to provide his explanation of events.(24)
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4. Free Speech v Privacy
In the Canadian case of R v Dyment [1988] 2 SCR 417, 427 LaForest J observed that the publication of "defamatory comments constitutes the invasion of the individual's personal privacy and is an affront to that person's dignity." In their turn, claims that privacy has been invaded have the potential to stifle free speech. It is unclear how this tension can be satisfactorily resolved. The Human Rights Act 1998 protects both interests, of course. Reynolds has little to say on the matter, except to draw a distinction (at 909) between allegations concerning public behaviour, and matters that are "personal and private, such that there is no public interest in their disclosure" and which, therefore, fall outside the privilege.(25) This distinction was not developed nor its components analysed.
Prima facie we might expect the notion of `private facts'(26) to cover matters such as health, family life, correspondence, and personal relations and beliefs, though not the conduct of any business, employment or office, and that even the former might be openly discussed where relevant to the conduct of public life or the suitability for, or discharge of public office. Sir David Calcutt Q.C. in his unflattering Review of Press Self-Regulation conceded (at para 4.38) that those who discharge public functions had to expect that their right to privacy would be reduced to some extent, but said that this should be permitted only so far as was "necessary for the public to be informed about matters directly affecting the discharge of their public functions." Such formulations unavoidably raise questions about what is `necessary' and the meaning of `directly'. Accordingly, reconciling privacy and free speech through the vague medium of what is in the public interest is likely to be tricky.
It is a commonplace observation that what `interests the public' is not at all the same as what is `in the public interest', though some sections of the media are "peculiarly vulnerable to confusing the two", as Sir John Donaldson MR noted in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 at 898. In the United States they appear to have been virtually equated, the courts there having effectively left the media to define what is newsworthy and fit to print. The result is that privacy has been "almost totally swallowed up by the right to publish"(Paton-Smith 1995, p 226; see too Wacks 1995, p 113-118). The Clinton / Lewinsky fiasco has vividly demonstrated one consequence of the transcendent value ascribed to free speech by the Supreme Court's interpretation of the First Amendment in Sullivan. Virtually all areas of the lives of US politicians, and others who find themselves characterised as `public figures', have come to be regarded as legitimate targets for criticism.(27) This result is doubly unfortunate. It effectively robs them of any claim to privacy, and disregards the risk that a freedom to publish true (and, all the more so, untrue) irrelevant private facts may chill free speech - in this case, the speech rights of those whose privacy is invaded. The danger of a virtually unrestricted power of media intrusion is that individuals, especially those holding unconventional or minority views, will be deterred from participating in public debate and effectively silenced, putting at risk the open and pluralist society that free speech aims to promote.(28) This is a sufficient reason to justify creating an evidential presumption, as Reynolds does, against the public scrutiny of private facts.
When considering whether the presumption has been rebutted, no doubt courts will draw on existing understandings of public interest disclosure,(29) though it is unlikely that any of these will be treated as definitive. It is more likely that progress will be made on a pragmatic, case by case basis. It may then be helpful to bear in mind that there are different sorts of privacy invasions. Sir John Laws has recently reminded us that there may often be two quite different questions involved in the so-called privacy debate (Laws 1998, p 263). The first concerns the methods by which the media glean the information, such as electronic eavesdropping and long-range photography, the second is whether the particular publication is justified or, alternatively, ought to be prohibited or met with an award of damages if it takes place.
In terms of the European Convention on Human Rights, the first question is primarily, though not exclusively an Article 8 privacy issue, while the second is primarily, but not exclusively a matter relating to the guarantee of free speech in Article 10. Where a defendant asserts that information obtained in breach of privacy ought nonetheless to be published in the public interest, the court will have to decide whether the end justifies the means, and whether the restriction on free expression is, as Article 10(2) demands, "necessary in a democratic society...for the protection of the reputation and rights of others." An allegation that a leading political figure (such as Sir Anthony Eden at the time of the Suez crisis, see James 1986, at 594-597) was so seriously ill that his judgement was affected, and that this had been covered up, is arguably in the public interest because it is relevant to the capacity to govern. The fact that this disclosure concerns an individual's health, which would ordinarily be a matter of confidential private concern, is beside the point here. There should be no fixed list of matters which are automatically and always `off limits'. What counts is the value of the information and the connection between the issues. For example, if research findings were to arouse widespread public concern because they contradicted government assurances on food safety, a newspaper's claim that the scientist heading the university research team had been raped when a student should be treated as an infringement of privacy and outside the privilege because it is irrelevant to her role in the public controversy or the credibility of the research data.(30) It is also suggested that disclosures which relate to private events in a plaintiff's past should fail the `relevancy' requirement unless there is a contemporary connection to the public interest issue under discussion.(31)
Contrary to what appears to be a widely shared public perception that the private peccadilloes of politicians should be open to discussion,(32) media privacy guidelines suggest otherwise. Neither a politician's sexual orientation, say, nor an allegation that he has a mistress should be disclosed, except to expose hypocrisy or to throw light on his public persona. This, broadly, is the position taken in the codes of practice of the Press Complaints Commission and the Broadcasting Standards Commission. Intrusion must be justified on a public interest ground, such as detecting crime, protecting public health and safety or preventing the public from being misled.(33) Barendt goes further, arguing that such allegations should not be counted as relevant, unless the individual has himself made them an issue, by campaigning on a `family values' platform, for example, in which case he can be called to account (Barendt 1995, p 36). Clearly, in an era when many politicians are prepared to disclose carefully selected aspects of their private lives to the media in order to promote their public image or to solicit sympathy, it would be inconsistent to allow them to then ring-fence other aspects. But what if nothing is said: should a politician be able to define what is private by his silence? Barendt's suggested distinction between active and passive misrepresentation is troubling in principle and likely to be hard to draw in practice.(34) Further, it comes close to claiming that the public is entitled to hear only what politicians are prepared to tell them. This position is unlikely to be acceptable to those for whom private morality is a material consideration, at least when it comes to the question of who is worthy of (and not just competent for) political office, as some politicians appear to recognise by resigning when shown to have crossed conventional moral thresholds. An Anglican bishop put this point forcefully when he said "private life has a bearing on public office. An invitation to vote is an invitation to trust...character is relevant."(35) Recognition of the power of these kinds of sentiments and of the political damage that may follow disclosure naturally inclines those threatened with exposure to claim invasion of privacy. Yet it is highly questionable whether politicians, at least, should be allowed to dictate what the public may and may not pay attention to when evaluating their representatives or exercising their electoral preferences.(36) Loveland has suggested that politicians should be deemed to have waived any presumption of privacy over sexual or other matters whenever Parliament debates such questions (see Loveland 1997).(37) An alternative view sees even this as too restrictive. Arguably politicians should be expected to put their trust in the public to decide what weight (if any) to attach to the matter in hand. After all, unlike other public figures, they hold office only because they are able to persuade the rest of us to vote for them. Suggestions that questions of private morality are `none of our business' and must be disregarded as idle gossip or as appealing only to the prurient are patronising and should be subjected to close and sceptical scrutiny. Courts should bear in mind that while the public neither believes nor necessarily expects its politicians to be saints, in a democracy the people are entitled to decide what the `real' issues are and to judge their representatives accordingly, and by reference to whatever criteria seem to them to be proper.(38)
When a balance comes to be struck between competing privacy and public interest claims, the Human Rights Act 1998 will need to be considered. Its aim of making the rights guaranteed by the European Convention on Human Rights directly enforceable will almost certainly require domestic courts, as `public authorities', to satisfy themselves that the contours of the common law are in conformity with Convention values, regardless of the status of the particular litigants before them (see Hunt 1998). As we saw earlier, the European Court of Human Rights, whose case law s.2 of the Act requires domestic courts to take into account, has recognised the essential role of the media as public watchdogs and has declared its strong support for a wide freedom of expression. Yet there is currently no decision on the application of Article 10 to the common law of defamation, other than in relation to damages (see Tolstoy Miloslavsky v UK (1995) 20 EHRR 442), and the Court has done little to consider the interrelationship between Article 8 (privacy) and Article 10 (free speech)(39): both are heavily qualified and neither has any obvious priority over the other. Nor has it arrived at any very settled position as regards the nature of `political' speech, what is of public interest,(40) or the extent to which false speech is permissible. What can be said is that a hierarchy has been recognised whereby the greatest latitude must be accorded to the critics of government, the narrowest to those who attack the reputations of private citizens (see Lingens v Austria (1986) 8 EHRR 407, para 42 and Castells v Spain (1992) 14 EHRR 445, paras 43 and 46). Respect for politicians appears to fit somewhere in between, perhaps at no fixed point on this continuum.(41) Furthermore, according to Lingens (paras 37 and 42), those who are accustomed to attacking their political opponents have "to expect fiercer criticism than other people" and that by standing for public office they "inevitably and knowingly" lay themselves open to "close scrutiny of every word and deed both by journalists and the public at large."
This somewhat partial legacy means there is much work still to be done in striking the right balance. In the absence of privilege, proof of truth will continue to be critical in defamation actions but will be irrelevant, presumably, to success in a privacy action, were one to be developed. For present purposes it is immaterial whether the judges will, as some appear to think, regard the passage of the Human Rights Act as a green light to introduce a discrete new privacy remedy.(42) The issue for libel defendants will continue to be whether they can show entitlement to the protection of the Reynolds form of qualified privilege, which turns on proof of publication in the public interest. Following intense lobbying, particularly by Lord Wakeham on behalf of the Press Complaints Commission, the government attempted to reassure the media that privacy claims would not easily trump freedom of expression. Section 12 of the Act requires courts to pay "particular regard" to the importance of the Article 10 Convention right to freedom of expression when deciding whether to grant any relief in respect of "journalistic, literary or artistic material", bearing in mind the extent to which it is "in the public interest for the material to be published," the likely availability of the material, and the provisions of any relevant privacy code (such as those of the voluntary Press Complaints Commission or the statutory Broadcasting Standards Commission).(43) Whether s.12 will significantly alter existing practices in the courts, especially as regards `prior restraint' and the grant of interlocutory injunctions, is disputed. The inevitability of close judicial scrutiny of the competing public and private interest claims where privilege is at issue is not.
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5. Conclusions
The Court of Appeal in Reynolds has created a new and potentially radical version of the defence of qualified privilege, while claiming to have merely eased the application of the conventional rules. Belatedly, the common law's traditional stance of refusing to differentiate between libels and between public and private reputations has been abandoned. Having accepted the chilling effect argument, the imposition of strict liability in defamation had to be abandoned. Instead English law has begun to recognise that some `breathing space' is essential if public interest speech is to flourish, whether the subject is the exercise of government, corporate or media power, or the behaviour of individuals engaged in the public life of the community. The enhanced importance given to such speech has been influenced by, and better aligns our law with, standards of free expression operating elsewhere.
Unsurprisingly, the Court of Appeal was not, however, prepared to leave individual reputations exposed to an unregulated `market place of ideas' in which plaintiffs could succeed only on proof of the absence of honest belief. Instead, it has attempted to strike a more appropriate balance by borrowing from Australia the idea of `reasonableness' in publication, and by excluding attacks on purely `private' behaviour. It is impossible to say at this point how much more socially valuable information will come into the public arena as a result. At first sight, the threat that public interest speech will be `chilled' appears to have been reduced, albeit to an extent which is presently unquantifiable. The new `negligence' standard may prove to be something of a poisoned chalice since requiring the media to show that their reports originated from a reliable source and have been carefully checked might also be expected to exert chilling effects.
What can be said is that re-regulating freedom of expression by amending qualified privilege in this way is the solution most obviously compatible with the architecture of the existing common law.(44) We can be fairly confident that distinguishing media claims that disclosure was a matter of public interest from counter claims that the information is `private', and so outside the privilege, is likely to be troublesome. It also seems likely that the courts will develop more effective remedies to catch the kind of egregious media intrusion evident in Kaye v Robertson [1991] FSR 62.(45) The House of Lords may shortly have the opportunity to consider these issues. Developments are awaited with interest.
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Footnotes
[1)See Lange v Australian Broadcasting Corporation(1997) 145 ALR 96 (High Court). For comment, see Trindade 1998.
(2) See Lange v Atkinson and Australian Consolidated Press NZ Ltd [1997] 2 NZLR 22 (High Court) and unreported decision of the NZ Court of Appeal, 25th May 1998. Page references are to the LEXIS transcript.
(3) See Blackshaw v Lord [1984] 1 QB 1, 27, where it was conceded that there might be `extreme cases' in which the publication of mere speculation or suspicion was justified, such as the threat posed by suspected terrorists or by the distribution of contaminated medicines or food, as in Camporese v Parton (1983) 150 DLR (3rd) 208.
(4) Many formerly public services and functions are now run by commercial entities with varying degrees of governmental oversight. How far, if at all, the principles in the Derbyshire case should apply to such organisations may be a difficult question. French J. heard a good deal of evidence in the British Coal case about the statutory framework which gave ministers a close degree of control over the plaintiff enabling him to conclude that it was a governmental authority of the kind Lord Keith had in mind.
(5) It is sometimes claimed, for example, that uninhibited criticism may sap the public's confidence in its political representatives or discourage decent and qualified persons from standing for public office, see the dicta of Lord Cockburn CJ in Campbell v Spottiswoode (1863) 3 B & S 769, 777.
(6) The notorious costs of libel may, however, deter far more individual plaintiffs than organisations with deeper pockets.
(7) After a 24 day trial the jury found the article libellous but declined to award the plaintiff any damages. The judge substituted a nominal figure of a penny. See the (Irish) Sunday Independent, 24th November 1996 for an account of the deliberations of the jury, not publishable in the UK because of the Contempt of Court Act 1981 which bans jury room disclosures.
(8) See Mitchell 1998 on the evolution of qualified privilege.
(9) See Braddock v Bevins [1948] 1 KB 580, communication by an elector to other electors in the same ward, but not to all the world, privileged. The effect of this decision was reversed by s.10 Defamation Act 1952, which deems the publication of candidates' election addresses, even to this limited extent, not to be privileged at all. Given the logic of Reynolds, s.10 is ripe for review.
(10) Oberschlick v Austria (1991) 19 EHRR 389, para 58. See too Lingens v Austria (1986) 8 EHRR 407, paras 41 and 42. Political expression is not confined to matters of high (party) politics at elections. It includes issues of day-to-day public concern, such as the impartiality of the courts and the conduct of the police, see Barfod v Denmark (1989) 13 EHRR 493 and Thorgeirson v Iceland (1992) 14 EHRR 843 respectively, and McBride 1998. More generally, see Harris et al, 1995.
(11) Cf. Sir John Laws who, in Ch. 7 of Loveland 1998, argues that `free speech' rights are not the creatures of democracy or self-government but derive from the freedom of individual thought. For a review of free speech theories see Barendt 1989, Ch.2.
(12) In order to give effect to the First Amendment's guarantee of free speech, Sullivan held that `public figures' could recover libel damages only on `clear proof of actual malice'. For a comparison of defamation in Britain and the USA, see Markesinis and Deakin 1994, 620-636. See too Loveland 1998a.
(13) Media reports of the authoritative findings of others have sometimes been held to be privileged at common law via a duty/interest analysis, see e.g. Perera v Peiris [1949] AC 1. Schedule 1, Defamation Act 1996, confers a statutory privilege on a wide range of such reports.
(14) Loveland 1998b (at 645) goes too far when he says that no privileged occasion can arise unless the information comes from a prima facie authoritative source.
(15) In Blackshaw a parallel claim to statutory privilege was also rejected. The press officer's remarks were not public information "issued" on behalf of a government department within para.12, Part II, Schedule, Defamation Act 1952 (now para. 9, Part II, Schedule 1, Defamation Act 1996).
(16) The proof of `reasonableness' is only necessary where there is publication to a wide audience and, consequently, a threat of much greater damage to the plaintiff. The traditional categories of common law privilege, which normally entail only limited publication (such as a complaint to a minister about the administration of his department), continue to operate alongside the new privilege.
(17) Trindade1998 (at 7) suggests that proving this may put the media in difficulty where information has been received from an anonymous or confidential source, unless they reveal the identity of their informant. However, in Gaddafi v Telegraph Group Ltd (unreported, 28th October 1998) the Court of Appeal refused to require the defendant to further identify its confidential source (unidentified western security service) for the purposes of pleading the Reynolds privilege adopting, inter alia, Goodwin v UK (1996) 22 EHRR 123, where the ECHR held that a judicial attempt to force a journalist to disclose the (confidential) source of a news story violated Art.10, except where there is an overriding public interest.
(18) In the UK, fair and accurate reports of certain matters of public interest have long attracted a statutory qualified privilege, subject to an obligation to publish, if requested, a reasonable response by way of explanation or contradiction. This is now available to all media publishers, see s.15 and Part II of Schedule 1, Defamation Act 1996.
(19) Reynolds (at 900) holds that express malice will continue to defeat qualified privilege. Lange v Australian Broadcasting Corporation (at 117-118) too sees a continuing role for malice, though "having regard to the subject matter of government and politics, the motive of causing damage to the plaintiff or his or her party cannot be regarded as improper". For an account of the historical development of strict liability and malice see Mitchell 1998.
(20) See e.g. the common law defence of innocent dissemination, now updated by s.1 of the Defamation Act 1996. For comment see Williams 1997 (at 214-216). Moreover, in Spring v Guardian Assurance plc [1995] 2 AC 296 negligence was held to trump privilege so that in Britain employers' references must be careful as well as honest.
(21) In the USA, public figures are open to attack in virtually all areas of their lives and not simply as regards their participation in matters relating to the public life of the community, see n. 12. The public/private figure divide has been criticised in Canada as being unwieldy in practice, so increasing the quantity and cost of libel litigation, see Hill v Church of Scientology of Toronto (1995)126 DLR (4th) 129,166-168, and in Australia and New Zealand as being too broad, see respectively Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 134 and Lange v Atkinson, at 31.
(22) See e.g. Gillick v BBC, The Times, 20th October 1995, (anti-abortion campaigner allegedly libelled while participating in a live TV debate). In US libel parlance such persons are styled `limited purpose' public figures, see Marcone v Penthouse 754 F 2d 1072 (1985).
(23) Because the Reynolds-led coalition government had done a good deal to promote the peace process in Northern Ireland, its dissolution was a matter of legitimate public interest in Britain as well as in the Republic.
(24) The source proved to be the `programme manager' of Mr Dick Spring, the leader of the Labour Party, oddly characterised as "one of Mr Reynolds' leading political opponents" despite being his principal partner in the coalition government. The court seems to have been swayed by the fact that the source was neither a deputy nor authorised by Mr Spring to accuse the plaintiff of lying.
Nor did it help that coverage in the Irish edition of the defendant's newspaper accused the plaintiff of no more than inadvertence.
(25) A similar distinction is explicit in New Zealand, see Lange v Atkinson (at 53-54), albeit that the privilege there is confined to attacks upon the capacity for office of aspiring or elected politicians.
(26) The privacy literature is vast. See, however, on this point Paton-Simpson (1998) and, more generally, Wacks (1995). If, as seems likely, privacy is restricted to `intimate personal information', corporate bodies would be unable to challenge the availability of the new privilege on this ground.
(27) See n. 12 and Monitor Patriot v Roy 401 US 265 (1971).
(28) See Paton-Simpson 1995 (at 238-240) for further elaboration of this important point.
(29) See e.g. the common law conception of public interest for the purposes of fair comment, discussed in Gatley (1998), (at 269-279), and the public interest justification for breach of confidence, considered by Wacks (1995), Ch. 4. Arguably the former is unfeasibly wide and the latter too narrow for this purpose. The codes of practice of the Press Complaints Commission and the Broadcasting Standards Commission, which were drafted with privacy considerations expressly in mind, enumerate material considerations. Such codes are declared to be relevant to s.12 applications under the Human Rights Act, see n.43 and associated text.
(30) See also s.4 Sexual Offences (Amendment) Act 1976, as amended, conferring on rape victims anonymity for life. The PCC, Code of Practice, para 11 prohibits the press from identifying victims of sexual assault unless there is `adequate justification' and they are free to do so. Cf. Florida Star v BJF 491 US 524 (1989) where having knowingly identified a rape victim contrary to state legislation, a newspaper was excused paying privacy damages by the US Supreme Court because contrary to Sullivan's interpretation of the prohibition in the First Amendment against `abridging the freedom of speech or of the press'.
(31) See the analogy with fair comment, discussed in Gatley (1998, at pp. 270-271).
(32) See e.g. a poll reported in The Guardian, 12th November 1997, showing that while 87% are in favour of the introduction of privacy legislation protecting the private lives of public figures against media intrusion, a majority (53%) is opposed to extending this to politicians.
(33) See the `public interest' clause in the PCC, Code of Practice, 1997 and the BSC, Codes of Guidance, 1998, para 14, which adds `disclosing significant incompetence in public office'. Contrast Article 8(2) ECHR permitting intrusions into personal privacy which are "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
(34) Barendt (1995, p. 36) acknowledged these problems, but wished to maintain the distinction for fear that otherwise public figures would be "virtually compelled to give up their privacy rights".
(35) The Right Rev. James Jones, Bishop elect of Liverpool, The Guardian, 12th March 1998, commenting on an extra-marital affair involving Robin Cook, the Foreign Secretary. Contrast the assertion of Lord Irvine LC that reports of the affair were devoid of any `public interest' and urging that the Press Complaints Commission be given a power of `prior restraint' to protect the privacy of public figures. These claims were immediately and forcefully repudiated by the Prime Minister's office. See The Guardian, 5th and 6th February 1998. Mr. Cook did not resign following the revelations.
(36) Arguably the `private' lives of other kinds of public figures should not be treated in the same manner, though matters which go to honesty or competence and hence suitability for office stand on a different footing.
(37) Two MPs were recently prompted to "put their sexuality on record" ahead of a Commons vote on lowering the age of consent for homosexuals, see The Guardian, 11th June 1998.
(38) The public may be more tolerant than the press or politicians credit. There is little evidence that the electorate is politically vindictive or overly moralistic, though dissembling and evasion are disliked. Recent poll evidence, for example, suggests that homosexuality is morally acceptable (56%) and that being openly gay is compatible with holding Cabinet office (52%), though the public continues to doubt whether privacy laws should extend to politicians, as distinct from royalty and celebrities, see The Guardian, 10th November 1998.
(39) Lord Bingham (1998), denying that the incorporation of Article 8 will lead to a far-reaching censorship, notes that while 14 violations of Article 8 have been proved against the UK in the last 30 years, none has had any connection with media invasions of privacy.
(40) Tierney (1998) notes the Court's invariable use of the term `of public interest' rather than `in the public interest, arguably a wider category.
(41) It may depend on the identity of the critic, as well as what was said, and about whom. The greatest latitude may be available to criticism of politicians by politicians, see Schwabe v Austria (1992) 14 HRLJ 26. In Castells, para 42 it was said that "interferences with the freedom of expression of an opposition MP...call for the closest scrutiny." The motive of the speaker is also significant. The protection of Art. 10 is more readily available to those whose aim is to stimulate genuine debate on a topic of public concern, see Thorgeirson v Iceland (1992) 14 EHRR 493.
(42) Lord Irvine L.C. has said that the judges are "pens poised, regardless of the incorporation of the Convention", see HL Deb., Vol. 583, col. 704, 24th November 1997, albeit that successive governments have refused to legislate, preferring media self-regulation, see e.g. Privacy and Media Intrusion, 1995.
(43) See HC Deb., Vol. 315, col. 534-563, 2 July 1998, for the parliamentary debate on s.12, and HC Research Paper 98/25, for a background review of the issues. An amendment that would have directed courts to give precedence to Article 10 rights over conflicting privacy claims, particularly where the information concerned matters of public interest, was rejected as going beyond the terms of the Convention and the Strasbourg case law, ibid, at col. 542.
(44) Other solutions to the perceived problems of libel litigation include reversing the burden of proof, making liability turn on negligence, and altering the rules on damages, see Libel Law Reform 1997.
(45) Actor photographed and `interviewed' when semi-conscious in an intensive care unit after an accident. No claim in defamation or privacy, though actionable as malicious falsehood.