Privilege, And This Time We Mean It

In 1999, the House of Lords in Reynolds v Times Newspapers Limited recognized a privilege defence for public interest journalism. Liberalising the law doesn't always achieve the desired effect, however, and in the more recent Jameel v Wall Street Journal their Lordships restated the principle. Defamation practitioner Adam Speker of 5 Raymond Buildings explains the background and where we are now

The journalist and one time libel litigant Adam Raphael ended on a pessimistic note his 1989 book, My Learned Friends, An Insider's View of the Jeffrey Archer Case and other Notorious Libel Actions. He wrote:

'The scene is thus set for many more years of wrangling and many more libel millionaires. But who really benefits? Neither the public nor the press. Neither plaintiffs nor defendants. Ogden Nash got it right: 'Professional people have no cares. Whatever happened they get theirs'.'

Journalists will seldom if ever be happy with the state of the libel laws in England but much has changed since 1989. Jeffrey Archer has been exposed as a liar, sent to prison and had to pay back his libel damages. The eye-watering jury awards of the past are now rare, as damages have generally decreased owing to the interventions of the Court of Appeal. The changes to civil procedure have resulted in fewer trials. There is now a defence of public interest for newspapers. Perhaps for Mr Raphael and Ogden Nash the most surprising development would be the introduction into this field of conditional fee agreements and costcapping, which has meant that solicitors and barristers are no longer always getting theirs.

Good news

It is just one of those developments - the public interest defence - which is the focus of this article. The recent House of Lords decision in Jameel v Wall Street Journal 1 is good news for journalists although it is neither new nor radical. It is a restatement of the liberalising judgment of the House of Lords in Reynolds v Times Newspapers Ltd 2, which in 1999 recognised a common law qualified privilege defence for public interest journalism to the world at large, but it should breathe new life into Reynolds since this latest message from that House is that the new defence it recognised has been too restrictively applied at first instance.

The impact of Jameel should not be seen in isolation from the other recent developments in media law. Lord Hoffman said at [38] that, 'until 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 (Naomi) Campbell v MGN 3 and in favour of the press to publish stories of genuine public interest in Reynolds. But this case suggests that Reynolds Ö has had little impact upon the way the law is applied at first instance. It is therefore necessary to restate the principles' .

In addition to the shift in the law's treatment of the private and the public, there should be awareness of the appellate decisions on the test to be applied for interim injunctive relief to restrain media publications4 and the correct test to apply. The latter requires balancing the competing rights under Articles 8 (respect for private and family life) and 10 (freedom of expression)5 as well as important decisions from Strasbourg confirming the extent to which Article 8 can give protection to an individual's reputation6 and freedom from harassment and intrusion by the press7. Whilst Jameel has had parts of Fleet Street dancing, it is likely that the Campbell decision (and subsequent case law) will have a greater impact upon journalism in this...