The House of Lords has said in Jameel v Wall Street Journal [2006] UKHL 44 that the lower courts have been far too reluctant to allow a newspaper or a writer to rely on Reynolds privilege. It is not unusual, where the House of Lords has set the law on a new path, for the practical application of the development of the law to be left to the lower courts, in particular the Court of Appeal. In Jameel, their Lordships say clearly and unanimously that the lower courts have so far not followed Reynolds correctly. The lower courts, according the the House of Lords, have said that a piece of journalism which can be faulted will not pass the Reynolds test and will not be privileged. The House of Lords are saying that a piece of journalism which is broadly speaking responsible should pass the test.

I have outlined the way Reynolds privilege has been developed in the lower courts in the second of the two CPD lectures on journalistic privilege which are available from www.legalpractitioner.co.uk. I said, in the end, that relying on Reynolds privilege, in a case where other defences (for example justification) are not available, gives at best unpredictable protection. If the additional guidance which the House have given in Jameel is followed in practice as it should be, that conclusion will have to be revised. There are five judgements, by no means all saying the same things, but all tending in the same direction, in the direction of saying that the Reynolds privilege should give much more robust protection to responsible journalists than it has hitherto.

In Reynolds, one of the Claimants was a Saudi company. It sued the Wall Street Journal Europe for defamation. The article which it said was defamatory stated that at the request of the United States the Saudi authorities were monitoring the bank accounts of many large Saudi companies for the possibility that they were being used, witting or unwitting, to channel terrorist funds. It named the claimant among those companies. At first instance and in the Court of Appeal the defence of Reynolds privilege failed, on the basis that the defendants had not give the claimants enough opportunity to comment on, or deny the story before it was published. This seemed rather a technical point, not least because the companies, if their bank accounts were being monitored in this way, would be unlikely to know about it, so the almost inevitable denial would not have much significance.

Before saying more about the way Reynolds privilege is treated in Jameel, let my digress to summarise the other question the case decided, by a majority. It is well known that in English defamation law, if a claimant proves libel (but not in a case of slander) he is entitled to damages, even if he cannot point to any quantifiable loss. There is a presumption of damage, and general damages will be awarded, and of course he will also be awarded special damages to cover any financial loss he can prove. The argument had been made that when a company sues for libel, in the interests of free speech, it should not be able to recover damages unless it can point to some financial loss. By a majority the House of Lords rejected that argument. They decided that the law should be left unchanged, so that a company can still be awarded general damages, even where there is no quantifiable loss which would entitle them to special damages.

If you look for some principle on which to decide whether a company which has been libelled should be able to recover general damages, you have to ask what the general damages are for. If general damages in libel are for hurt feelings, then it does not make sense for a company to recover general damages because a company has no feelings. Directors who may be implicated by the libel could of course sue independently of the company so they have a remedy for hurt feelings, even if the company cannot sue. The judges who thought that general damages should be available to a company (Lord Hope, Lord Bingham, and Lord Scott) said that general damages are not only for hurt feelings but for any harm to the person defamed, and this could include damage which has financial consequences (albeit financial consequences which are too hard to prove or quantify for a claim of special damages). Baroness Hale favoured a change in the law on this point in the interests of freedom of speech, and Lord Hoffmann made brief comments agreeing with her.

Returning to Reynolds privilege, their Lordships were also divided in their analysis, though not in their conclusions. The superficially obvious difference of opinion was the division between those who did and those who did not agree with the Court of Appeal in Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783, 806 that "Reynolds privilege" is "a different jurisprudential creature from the traditional form of privilege from which it sprang." I am not going to discuss this any further because I can see no practical significance whatsoever in the difference of opinion. There may be a case in which the question arises, to what extent is it useful and permissible to go back to pre-Reynolds and pre-Jameel cases and draw on the case law surrounding the "traditional form of privilege" in order to elucidate Reynolds privilege. However, the guidance the House of Lords has given in these two cases is so extensive that this seems unlikely, and I cannot foresee such a case. For what it is worth, Lord Hoffmann and Baroness Hale say Reynolds privilege is a different jurisprudential creature, Lord Scott says it is not, and Lord Bingham and Lord Hope speak about the development of or building on the law concerning traditional privilege.

Lord Scott gives the second longest treatment of Reynolds privilege in Jameel (the longest is by Lord Hoffman), and Lord Scott's speech is the most interesting academically. He goes back to nineteenth century cases to investigate the origin of the presumption of damage in libel cases. Starting at paragraph 127 he quotes 19th century cases which establish that the foundation of the law of libel is malice. If you say something damaging about a person, you may be presumed to be motivated by malice, unless the situation is one where it is proper and perhaps necessary to communicate your honestly held but damaging beliefs about that persons. Such an occasion is privileged. That concept can be extended to journalism – the fact a journalist expresses honestly held and damaging beliefs or allegations should not be taken as a sign of malice, and should not give rise to a presumption of malice, because it is part of a journalist's job to communicate information which may be damaging, on topics where dissemination of information is in the public interest. This is powerful way of analysing the foundation of Reynolds privilege.

However, in practice it is probably chiefly to the detailed treatment of the issue by Lord Hoffman that practitioners will turn for guidance. This is good for journalists, because Lord Hoffman is particularly robust in saying that the lower courts have been getting Reynolds privilege wrong. In effect he says that the law should have no more difficulty spotting responsible journalism when it sees it, than spotting a reasonable standard of care. The implication is that judges sitting in libel cases should be as reluctant to find against a journalist who has done a reasonably professional job, as judges sitting in a clinical negligence case are to find against a doctor who has done a reasonably professional job. If followed, this will transform the law relating to journalistic privilege in a way that (according to their Lordships) Reynolds was intended to transform the law, in favour of protecting broadly responsible journalists from defamation suits.

I cannot do better than end with a quotation from Lord Hoffman's speech which is at the heart of his reasoning:

53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309:

"Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege."

54. Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as "responsible journalism".

55. In this case, Eady J said that the concept of "responsible journalism" was too vague. It was, he said, "subjective". I am not certain what this means, except that it is obviously a term of disapproval. (In the jargon of the old Soviet Union, "objective" meant correct and in accordance with the Party line, while "subjective" meant deviationist and wrong.) But the 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 law. Greater certainty in its application is attained in two ways. First, as Lord Nicholls said, a body of illustrative case law builds up. Secondly, just as the standard of reasonable care in particular areas, such as driving a vehicle, is made more concrete by extra-statutory codes of behaviour like the Highway Code, so the standard of responsible journalism is made more specific by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission. This too, while not binding upon the courts, can provide valuable guidance.

56. In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten matters which should in suitable cases be taken into account. They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. That is how Eady J treated them. The defence, he said, can be sustained only after "the closest and most rigorous scrutiny" by the application of what he called "Lord Nicholls' ten tests". But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at p 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner. It must have regard to practical realities.

57. Instead, Eady J rigidly applied the old law. Building upon some obiter remarks of Lord Cooke of Thorndon in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 301 to which he referred seven times in the course of his judgment (the case was actually about statutory privilege), the judge insisted that Reynolds had changed nothing.

Dr John Birchall - Professional English, Legal English, and Common Law Training