The law of defamation is concerned with the protection of an individual’s reputation in the face of untrue statements about them that have been published to third parties (for instance, in a newspaper article). Where a claimant satisfies the court that there has indeed been a defamatory statement – i.e., a statement that would lead an ordinary person to think less of the claimant – the defendant must be able to forward a defence that explains why he, she or it was lawfully entitled to make the statement. Should no defence be forthcoming, the court will ordinarily award damages to the claimant, although an injunction may also issue depending on circumstance. Any award of damages will in turn be determined in the light of the context of the case and, among other things, the character of the claimant.
There is a wide range of defences that may be pleaded in defamation, but the one that is most famously associated with the public interest is “qualified privilege”. The essence of this defence is that the person making a statement has a duty to do so and that the person who hears, or reads, the statement has a corresponding interest in doing so. The defence is by no means limited to the publication of stories by the media, but it is in that context that the idea of publication in the public interest is at its most pronounced. The leading case on the defence remains Reynolds v Times Newspapers (1999), which was an action taken by the former Prime Minister of Ireland in respect of stories about how he had conducted himself while in office. Given the political context to the story, the defendant had argued that the story should automatically attract privilege and that the claimant should be required to show that the defendant had acted with malice. However, the House of Lords was of the view that such an approach would swing the pendulum too far away from the protection of reputation, and it instead proposed a number of guidelines that newspapers should observe if wishing to argue that a publication was responsible and in the public interest. Those non-exhaustive guidelines, listed by Lord Nicholls, require the media to consider:
- The seriousness of the allegation, i.e. if the allegation is not true what will be the level of misinformation to the public and what will be the corresponding harm to the individual
- The nature of the information and the extent to which the subject-matter is a matter of public concern.
- The source of the information and whether it is reliable or motivated by malice and/or avarice
- Whether suitable steps have been taken to verify the information
- Whether the allegation in a story has already been the subject of an investigation which commands respect
- Whether it is important that the story be published quickly
- Whether comment was sought from the claimant, or whether that was not necessary in the context of the story
- If the article includes the gist of the claimant’s version of events
- Whether the article is written in such a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation
- The timing of the publication
These guidelines, which may soon be placed on a statutory footing (Defamation Bill 2011) have since been applied by the courts in a large number of other cases. A particularly high-profile example was Galloway v Telegraph Group Ltd ( EWCA Civ 17), where the Court of Appeal held that the defendant newspaper had not observed the Reynolds guidelines when publishing embellished stories about the claimant’s alleged links to Saddam Hussein’s regime in Iraq.
In addition to the defence of qualified privilege, the law of defamation also recognises public interest as a component part of the further defence of “fair comment”. This defence is made when the maker of a statement demonstrates that the statement in question was one of opinion, not of fact, and that it was made on a matter of “public interest”. For consideration see, again, Galloway v Telegraph Group Ltd ( EWCA Civ 17).