Andrew Joyce gives his illuminating account of the recent House of Lords judgment in Jameel v Wall Street Journal. This is a case which has a real impact on all engaged in responsible journalism, whether online or in print. But online publishers, driven by new time constraints and with worldwide vulnerability for defamation, must pay it special attention.
The House of Lords judgment in Jameel and Others v Wall Street Journal Europe Sprl  UKHL 44 has been eagerly awaited by the press as well as by libel lawyers. The case was heard in June this year and judgment delivered on 11 October. The Jameel judgment comes only about five years after the judgment on qualified privilege in Reynolds v Times Newspapers  2 AC 127. In the interim there have been several attempts to bring Reynolds privilege situations back before the House of Lords (for example, in Loutchansky). This high level of attention given to Reynolds privilege underlines its importance to the serious media.
To the uninitiated, it may be surprising that factual matters reported in a newspaper or other media may be factually untrue, defamatory and yet - if the publisher can stand up the defence of Reynolds privilege – the publisher will have a complete defence in law to the publication. It is no wonder, therefore, that when the Reynolds privilege defence is raised, the courts scrutinise it very closely and it is, perhaps, not too surprising that, generally, the courts have tended to come down in favour of protecting reputation rather than protecting the right to say something which turns out to be untrue.
Immediately after the House of Lord's judgment in Reynolds (which was quickly followed by s 12 of the Human Rights Act 1998), it had seemed likely that there would be a perceptible shift in the age-old struggle between freedom of expression and the right to reputation. The reality, however, has been rather different. Time and again the press have run Reynolds privilege defences but such defences have rarely found favour with the courts.
Against that background, the fact that the House of Lords has had the opportunity to review the position five years after Reynolds is to be welcomed. The House's judgment in Jameel is infinitely more encouraging to the media than what has transpired in the lower courts since Reynolds.
The Test for the Reynolds Defence
Underlying the defence of qualified privilege is the so-called "duty-interest test": essentially there must be a "duty" on the part of the publisher to inform and an "interest" on the part of the audience to receive the relevant information. Reynolds, whilst retaining this duty-interest test, re-stated it in a simpler and more direct way. The issue was said to be "whether the public was entitled to know the particular information".
One of the advantages of the Reynolds privilege defence is its elasticity and its ability to adapt to particular circumstances. But this same quality is also a danger – it creates unpredictabilities as to how the courts might apply the defence to particular sets of facts.
In deciding the question of whether the public was entitled to know the particular information, the courts are required under Reynolds to look at all the circumstances surrounding the particular case. Lord Nicholls famously set out a non-exhaustive list of ten factors which would be relevant to deciding whether Reynolds privilege should apply to a particular publication. These factors included the seriousness of the allegation made, the extent to which the subject matter is a matter of public concern, the source of the information, the steps taken by the publication to verify the information, the tone of the article and the circumstances of the publication (including timing).
These non-exhaustive factors were clearly expressed to be guidelines. It was believed that, over time, a sufficient corpus of case law would build up and, with it, a greater degree of predictability as to when Reynolds privilege would apply. That, however, has not happened to the extent envisaged. As Lord Hoffman observed in Jameel, the non-exhaustive list of 10 factors "are not tests which the publication has to pass. In the hands of a Judge hostile to the spirit of Reynolds, they can become 10 hurdles at any of which the defence may fail. That is how Eady J. treated them".
In Jameel the House of Lords has re-visited Reynolds privilege. There has been no significant departure from Lord Nicholls' seminal judgment in Reynolds but there are, perhaps, slight shifts of emphasis. The principal lesson to be learned from Jameel is that the House has very authoritatively underscored the importance in a democracy of the role of the media in reporting matters of public interest in accordance with responsible journalistic standards.
The media are not to be punished if, having adopted those standards, the information turns out later to be wrong - or unproveable. Lord Scott, in dealing with the suggestion that it might be inconsistent with responsible journalism for the Wall Street Journal to have published a story disclosing the names on a list that the US authorities had undertaken to keep confidential, observed "subject to D Notices and the like, it is no part of the duty of the press to co-operate with any government, let alone foreign governments, whether friendly or not, in order to keep from the public information of public interest, the disclosure of which cannot be said to be damaging to national interests".
The thread running through several of the judgments in Jameel is that the principles of Reynolds privilege, which have now been part of the law for some years, have been too restrictively interpreted by the lower courts which have been slow to embrace Reynolds privilege or even hostile to it. Lord Hoffman summarised the position in Jameel thus:-
"Until very recently, the Law of Defamation was weighted in favour of claimants and the Law of Privacy weighted against them. True but trivial intrusions into private life were safe. Reports of investigations by the newspaper into matters of public concern which could be construed as reflecting badly on public figures, domestic or foreign, were risky. The House attempted to redress the balance in favour of privacy in Campbell v MGN Limited and in favour of greater freedom for the Press to publish stories of genuine public interest in Reynolds v Times Newspapers Ltd".
But he went on to point out that the Jameel case showed that "Reynolds has had little impact upon the way the law is applied at first instance".
Hoffman's judgment highlights particularly the importance of three areas as follows:-
(a) The public interest of the material
The question of whether the published material is a matter of public interest is all-important and falls to be decided by the judge. Mirroring what has been said in similar language elsewhere, Lord Hoffman observed "the public tends to be interested in many things which are not of the slightest public interest". Jameel reinforces that there must be some real public interest in having the material in the public domain. This, as Baroness Hale observed, is a lesser test than whether the public "need to know" - which would be far too limited. On the facts of Jameel, which involved an article about the surveillance of the bank accounts of major Saudi Arabian companies by the Saudi authorities at the request of the US government in the aftermath of 9/11, there was no doubt that this material easily passed the public interest test. The article was a serious contribution in measured tone to a subject of very considerable importance.
(b) Inclusion of the Defamatory Statement
Once it has been established that the article as a whole concerns a matter of public interest, the next question for consideration is whether the inclusion of the particular defamatory statement is justifiable. The fact that a story is of public interest cannot be used to draw in damaging allegations which serve no useful purpose. The allegations must be part of the story and should make a "real contribution" to the public interest element in the article. Jameel recognises that, where a story is adjudged to be in the public interest, opinions will always differ over what details are needed as part of the general message conveyed by the article. Hoffman concluded "the fact that the Judge, with the advantage of leisure and hindsight, might have made a different editorial decision, should not destroy the defence". In Jameel, the naming of large and respectable Saudi companies, whose identities had not previously been revealed, whose bank accounts were said to be being monitored by the Saudi authorities at the request of the US authorities was adjudged to be an important part of the story.
(c) Responsible Journalism
Once the publication - including the particular defamatory statement - passes the test of public interest, the next stage of the inquiry is to look at whether the steps taken to gather and publish the information were responsible and fair. At first instance, Eady J. had felt "responsible journalism" was too vague a concept and had described it as "subjective". Lord Hoffman has sent a strong message that this standard of "responsible journalism" is as objective and no more vague than standards such as "reasonable care" which are regularly used in other branches of the law. As Lord Hope observed "any test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty … but … I think that the extent of this uncertainty ought not to be exaggerated. 'Responsible journalism' is a standard which everyone in the media and elsewhere can recognise".
This standard of "responsible journalism" has thus been strongly reinforced. In addition to a body of case law which will build up to define the standard, it will also be supplemented by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission. Factors which will be key to responsible journalism will, of course, include the steps taken to verify the story and the opportunity given to the claimant to comment on the story and the role of the editor will be extremely important. Editors today have to make fine judgements against tight deadlines. In almost every story it will be possible later to say that this or that particular fact should not have been included when viewing the story with the twin luxuries of time and hindsight. Jameel provides the clearest possible signal that in future judges should resist the temptation to prefer their own ex post facto editorial judgments to the one taken by a responsible editor at the time of publication.
The judgments of the Lords in Jameel strongly re-affirm the importance of Reynolds privilege - or as it may more accurately become known, Reynolds public interest defence - as a cornerstone to protect the press when responsibly informing the public on matters of public interest. Perhaps the most surprising aspect of the Jameel case is that it has taken a unanimous judgment of the House of Lords to reverse a 4:0 deficit in the courts below into a 5:4 overall majority of judicial opinion. As Baroness Hale observed "If the public interest defence does not succeed on the known facts of this case, it is hard to see it ever succeeding".
The lower courts must now embrace the new landscape of public interest defence and recognise that occasions when the public interest justifies publication will be more frequent than may previously have been thought.
Andrew Joyce is a partner and Head of Media at Wedlake Bell: email@example.com.
Click here for the full judgment in the case.