UK: Court Ruling Gives Media A Public Interest Defence Which Has A Fighting Chance Of Succeeding

For a certain sort of lawyer, this week's House of Lord's judgement in Jameel and others v Wall Street Journal Europe was eagerly awaited. There was expectation that it would clarify the application of the much vaunted but rarely successful Reynolds defence, which had broadened the scope of qualified privilege to protect responsible journalism on matters of public concern from successful defamation claims.

On 6 February 2002, the European edition of the Wall Street Journal carried an article entitled "Saudi officials monitor certain bank accounts – focus is on those with potential terrorist ties". It described how, at the request of the United States, the Saudi central bank was monitoring the accounts of leading Saudi businessmen to prevent them being used wittingly or unwittingly to funnel the funds of terrorist organisations. Among the individuals and companies named was "the Abdul Latif Jameel Group of companies", which the article later reported could not be reached for comment. One of the group's companies and its general manager sued for libel. They were successful both at first instance and in the Court of Appeal, both courts rejecting the newspaper's claim that publication was protected by the qualified privilege developed in Reynolds v Times Newspapers Limited.

In the leading judgement in the House of Lords, Lord Hoffman suggested that the defence ought to be called "the Reynolds public interest defence rather than privilege". This is a useful clarification for both lawyers and the media. For lawyers the label "Reynolds privilege" was misleading because privilege traditionally attaches to the circumstances of publication; where Reynolds applies it is the content of the publication that is protected. For the media it makes clear that, subject to certain restrictions, reports on matters of public interest will be protected from defamation claims.

The Law Lords made clear that the Wall Street Journal's article was the sort of serious journalism that obviously passes the public interest test. However, a good deal of information that interests the public - including, according to Baroness Hale "the most rapid tittle-tattle about footballers wives and girlfriends" – will not do so. The court's view was that the question of public interest, the first question to be decided in applying the defence, is a matter for the judge to decide without taking account of editorial opinion.

The subsequent question is whether defamatory words needed to be included in the story. This, by contrast, is a matter where editorial judgement is central.

That the story could have been told without including a defamatory statement will not necessarily destroy the defence provided, it seems, it can be justified editorially. As the defence develops, it is likely that evidence of editorial decision-making will play a key role.

The final question is whether the publication was responsible; the so-called responsible journalism test. In Reynolds the court laid down ten non-exhaustive guidelines to be considered in deciding whether the publication was responsible. The House of Lords was critical of the lower courts' transformation of these guidelines into ten hurdles to be overcome. Following Jameel the position is that responsible journalism is to be judged in the round. After all, as Lord Hope puts it, "responsible journalism is a standard which everyone in the media and elsewhere can recognise".

Lord Hoffman describes the judgement as a restatement of the Reynolds principles. Its now clear that the defence should be applied, more or less, as originally set out in Reynolds. In that sense the House of Lords has set the defence back on its original course and removes the uncertainty of other recent judgements. But this underplays its significance.

The Jameel decision should be of real practical benefit to the media. Editors can now test whether they might have a Reynolds defence with relative ease before publication: Is the story in the public interest? Has the journalism been responsible? If the article is ever looked at in court Reynolds now gives the media a public interest defence which has a fighting chance of succeeding.