POLITICAL EXPRESSION, QUALIFIED PRIVILEGE AND INVESTIGATIVE JOURNALISM -AN ANALYSIS OF DEVELOPMENTS IN ENGLISH DEFAMATION LAW POST REYNOLDS V TIMES NEWSPAPERS
The conflict between, on the one hand, the freedom of media organisations to communicate information about elected office holders to their viewers and readers, and, on the other, political figures' right to reputation, has been the subject of considerable litigation in the courts of England, Australia and New Zealand. The reason for this is not hard to discern. In the respective constitutional settings, freedom of expression (or, in the case of Australia, freedom of political communication) no longer ranks as a residual liberty in the traditional Diceyean sense1 but has instead been accorded a more formal constitutional status either by virtue of an Act of Parliament (in the United Kingdom and New Zealand) or by judicial implication (in Australia).2 Predictably, media organisations have been keen to test the outer limits of expressive freedom in these new constitutional landscapes, challenging inter alia common law defamation rules framed in an altogether less speech-friendly era.3 In ways that attempt to reflect jurisdictionally-distinct substantive and procedural rules, the national courts have thus sought to rein in aspects of defamation laws to signal the heightened importance which is now attached to certain expressive forms. Specifically, in relation to the development of the common law defence of qualified privilege, it has long been accepted that a legal rule requiring publishers to demonstrate at all times the factual truth of statements would inhibit or 'chill' the making of certain claims which were factually accurate but which the publisher was unable to substantiate at that time. Moreover, in an era of universal adult suffrage and mass communications, the narrowly defined classes of persons to whom under nineteenth century precedents false and defamatory statements might be made without attracting liability could no longer be thought to encapsulate the public's legitimate interest in receiving information and ideas about political affairs. At the same time, the protection of office holders' (and aspiring office holders') reputations is also connected to the notion of a well-functioning democracy. Where political figures' reputations are falsely debased, this serves only to hinder informed scrutiny and accountability of candidates for public office and may prevent otherwise suitable persons from putting themselves forward.4Additionally, dishonest politicians may use what — from a claimant's perspective — is an onerous libel test as a disingenuous reason for not launching proceedings against a publisher. Again, it is difficult to see how the public interest in informed political debate is thereby advanced. In seeking to give legal form to the appropriate level of protection for political figures, it should, however, be remembered that, unlike ordinary members of the public, such persons may usually count on ready access to national and/or local media to rebut allegations considered damaging.
Having each rejected the standard of 'actual malice' laid down by the US Supreme Court in Sullivan v New York Times5as excessively protective of publishers of falsehoods, the task of the respective judges has been to craft rules that take proper account of the interests of voters in modern democracies within the distinct constitutional and procedural traditions of each jurisdiction whilst, at the same time, reflecting the countervailing public interest in maintaining the reputation of politicians and aspiring office holders. In so doing, much judicial ink has been expended in comparative analyses of related common law systems' line-drawing. Indeed, the Privy Council set aside the New Zealand Court of Appeal's 1998 ruling in Lange v Atkinson6and remitted it back to the Court of Appeal for rehearing so that the latter might have the benefit of the reasoning of the House of Lords in Reynolds v Times Newspapers Ltd.7The Privy Council, it will be recalled, declined to lay down any firm guidance on the balance, stating that the New Zealand courts were 'much better placed to assess the requirements of the public interest in New Zealand'.8 In the event, as is well-known, an identically-constituted Court of Appeal confirmed that publication to the public as a whole of information about actions and/or qualities of current or former members of Parliament, as well as aspirants to elected office, would constitute a privileged occasion for the purposes of the qualified privilege defence at common law. Nonetheless, in its discussion of s 19 of the Defamation Act 1992 - which permits a plaintiff to rebut the defence where a publisher was 'predominantly motivated by ill-will towards the plaintiff, or otherwise took improper advantage of the occasion of publication'-the Court took in its own words 'a more expansive approach to what constitutes misuse of the occasion.'9 Specifically, the Court considered that reckless conduct on the part of a publisher would remove the defence. After all, the purpose behind the newly expanded definition of a 'privileged occasion' was to further responsible public discussion and debate.10 Those who took a 'cavalier' approach to the truth would be likely to forfeit the protection.11 Of course, under s 19, the burden falls on the plaintiff to rebut the defence, rather than for the defendant publisher to show that his/her conduct was responsible in the circumstances. The difficulties placed in the way of a successful rebuttal include the fact that, where a defendant enters a plea of a qualified privilege, r 285 of the High Court Rules states that 'no interrogatories as to the defendant's sources of information or grounds of belief should be allowed.'12
In an empirical study of English defamation practice published in 1997, the uncertainty of the parameters of then existing defence of qualified privilege were considered to induce a degree of self-censorship on the part of the media that 'significantly restrict[ed] what the public [was] ... able to read and hear.'13 Two years later, the ruling of the House of Lords in Reynolds v Times Newspapers is generally taken to have expanded the circumstances at common law in which responsible publishers can communicate defamatory materials to the world at large without attracting liability, albeit under a methodology in which factors that would be relevant in New Zealand or Australia to an analysis of whether the a privileged occasion had been abused (such as publishing a statement with intent to injure another, malice, or recklessness as to the truth of the statement) are treated, in contrast, as going to the prior issue of whether a privileged occasion has arisen in the first place.14 The evolution that Reynolds represents in English common law thinking has been rightly characterised by the Master of the Rolls as creating a sui generis form of qualified privilege.15 The precise manner in which Reynolds has advanced media freedom in England is set out below. In what follows, I argue that, although a clearer sense of the sorts of circumstances in which Reynolds acts as a shield to media organisations wishing to report political news stories has begun to emerge, the application of the Nicholls' criteria to individual cases (particularly in the High Court beyond which relatively few defamation cases proceed) has added its own 'chill' to freedom of expression. If anything, the sentiment that Reynolds would usher in a more protective era for investigative journalism has proved unfounded. Whilst individual factors may be cited (for example the anonymity of sources has on occasions plainly hindered media organisations' efforts to establish that an informant had direct knowledge of the subject matter of the story),16 at a deeper level, it may be plausibly claimed that the methodology of Reynolds is responsible for the current 'chill'. Andrew Kenyon's recent empirical study of English defamation lawyers' attitudes to post-Reynolds practice revealed a level of unhappiness with the emergent fact-finding role for the jury in cases where qualified privilege is pleaded.17 Described by some barristers as a 'clumsy and unsatisfactory' method, jury members are now expected to answer detailed factual questions that stand in sharp contrast to their previous role of delivering an overall verdict on the case. The average jury member's lack of awareness of the actual circumstances in which newsgathering occurs has arguably made it easier for claimants to secure favourable answers that undermine the Reynolds defence at this stage of libel proceedings. Having gained this new function, the jury has at the same time lost its historical role in delivering an overall verdict at the end of the trial. There is a view that this removes an important democratic safeguard for freedom of expression, substituting in its place judicial conceptions of 'public interest'.18