The "Reynolds Public Interest Defence" And S.4 Of The UK Defamation Act 2013

• Published date: 13 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: SKRINE
• Author: Mr Leong Wai Hong and Aufa Radzi

"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. If they are to have benefit of the privilege journalists must exercise due professional skill and care."
(per Lord Nicholls in Bonnick v Morris [2003] 1 AC 300 Privy Council appeal from Jamaica)

This balance between freedom of expression and reputation of individuals was recently considered by the UK Supreme Court in Serafin v Malkiewicz and others [2020] UKSC 23 ("Serafin").

A case commentary by Leong Wai Hong (Partner) and Aufa Radzi (Senior Associate).

Serafin was an appeal in a defamation action where Lord Wilson said was 'sensitive and important' as it involves findings of the Court of Appeal that the trial judge was unfair towards the claimant. The Supreme Court also considered whether the Reynolds public interest defence had been codified in Section 4 of the Defamation Act 2013.

Key points

1. The proper conduct of a trial judge, especially to a litigant in-person.
2. In concluding that a judgment was obtained from an unfair trial, the Court of Appeal should have sent the matter for re-trial.
3. When considering the public interest defence in Section 4 of the UK Defamation Act 2013 ("Defamation Act 2013") the court should not use the Reynolds' factors as a checklist.
4. In the UK, the passing of the Defamation Act 2013 was intended to strike a balance between the claimant and defendant. UK defamation decisions based on s.4 of the Defamation Act 2013 should be applied by Malaysian courts with caution. The leading UK decisions that remain applicable in Malaysia are Reynolds v Times Newspapers Ltd [2001] 2 AC 127, Jameel (Mohammed) v Wall Street Journal Sprl [2006] UKHL 44 and Flood v Times Newspapers Ltd [2012] UKSC 11.

Background

This case concerns an article published by Nowy Czas, a newspaper for the Polish community in the UK on Mr. Serafin ("Claimant"), a Polish builder who had been living in the UK for many years. The Claimant had a food business, called Polfood, in 2008. The company then became insolvent and the Claimant was declared a bankrupt in 2011. In...