Defamation
Cases
Berry v. Irish Times
[1973] I.R. 368
O’Dalaigh C.J. 372
In the issue of the 25th September, 1970, the Irish Timespublished a news story concerning the occupation, by 15 members of Sinn Féin, of the British Overseas Aircraft Corporation in Grafton Street, Dublin. The news item was illustrated with a photograph which has given rise to the present proceedings.
The photograph is of the exterior of the B.O.A.C. offices and shows a poster, hung from the office window, referring to the release of political prisoners being held in Britain, together with copies of the periodical Hibernia. The photograph also shows a man bearing a placard with the words upon it which are complained of in this action, namely:” “Peter Berry ” 20th Century Felon Setter ” Helped Jail Republicans in England.” The associated news item stated that the demonstration was for the purpose of demanding the release of Irish prisoners being held in Britain and that the issue of Hibernia which was hung on the window contained an article on an appeal against their sentences by two Irishmen named Conor Lynch and Patrick O’Sullivan, who had been sentenced to seven years imprisonment in Britain after being convicted of taking part in a raid for arms in Dagenham. The news item also referred to a statement which was handed out by the demonstrating group which, under the heading”Imperial Grip” included the words:” “All of these prisoners are political hostages held in jail by the British Empire which for eight hundred years now has hijacked the peace and prosperity of the Irish nation for imperial purposes. The crime of these prisoners is that they are concerned Irish people trying to do what little they could to loosen the imperial grip on Ireland.”
At the time the demonstration outside the B.O.A.C. offices took place, the plaintiff was the Secretary of the Department of Justice and, as is common ground in this action, was well known as such to the public. There could be little doubt to whom the poster referred. The Department of Justice is the Department which by law comprises the administration and business of public services in connection with the police, among other functions: see the Ministers and Secretaries Act, 1924. Whether or not persons who saw the actual poster being displayed on the street were aware that the reference on it concerned Lynch and O’Sullivan, there can be no doubt that the readers of the Irish Times were made so aware by the news item which was printed underneath the photograph.
In the statement of claim the words on the poster which appeared in the photograph were cited in full and it was pleaded that the words meant and were understood to mean”that the plaintiff had helped in the jailing of Irish republicans in England.” It was pleaded that these words were defamatory. The defendants pleaded that the words were not defamatory and pleaded that the matter as published by them was a fair and accurate photographic report which was of general public interest and concern which the defendants had a duty to communicate to the general public, and that the publication was therefore privileged. The words were claimed to be defamatory in their ordinary meaning and no innuendo was pleaded and no attempt was made in the pleadings, or at the trial, to attribute any special meaning to the words other than their ordinary meaning.
The only witness who gave evidence at the trial was the plaintiff. He gave evidence to the effect that the words were untrue. No attempt was made to contravert this. The trial judge refused an application for non-suit made by the defendants who submitted that the words were not capable of being defamatory. The case went to the jury on three questions. The first question was, whether the material complained of conveyed that the plaintiff had helped in the jailing of Irish republicans in England. The trial judge directed the jury to answer this question in the affirmative. The second question was:” “Was the publication defamatory of the plaintiff?” The jury answered this question in the negative. The third question, which related to damages, did not therefore require to be answered. On these findings judgment was entered for the defendants.
The plaintiff has appealed on the ground that no jury, acting reasonably, could answer that the matter complained of was not defamatory, and also on the ground that the answer and finding of the jury was contrary to the evidence and the weight of the evidence, and, thirdly, on the ground that the finding was perverse. There was a fourth and final ground that the trial was unsatisfactory. The plaintiff asks this Court to hold, as a matter of law, that the words complained of could not be held to be other than defamatory. That is to say that the report in the Irish Times of the statement that the plaintiff had assisted in the jailing of Irish republicans in England, particularly in the publication referring to Lynch and O’Sullivan, are words which must hold the plaintiff up to public odium and contempt in the minds of average right-thinking persons in our community.
The law in the matter is most recently set out in the judgment of this Court in Quigley v. Creation Ltd. 15 In the course of his judgment, Mr. Justice Walsh at p. 272 of the report stated the position in law to be as follows:””Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men could not or ought not have come. It is true that if words only tend to lower a person in the minds of a particular class or section of society, particularly if the standard of that particular section of society is one which the Court cannot recognise or approve, the words will not be held to be defamatory. On the other hand, words are defamatory if they impute conduct which would tend to lower that person in the eyes of a considerable and respectable class of the community, though not in the eyes of the community as a whole. The test is whether it will lower him in the eyes of the average right-thinking man. If it will, then it is defamatory if untrue. It follows naturally that in an action in this country the standard would be that of the average right-thinking person in this community. The law recognises the right of the plaintiff to have the estimation in which he stands in the opinion of the right-minded people in this community unaffected by false statements to his discredit.”The judgment also goes on to state that in defamation, as in perhaps no other form of civil proceedings, the position of the jury is uniquely important. Mr. Justice Budd and Mr. Justice McLoughlin agreed.
There can be little doubt that the person who published on the placard, which appears in the photograph, the words complained of published a statement which, on the evidence, is indisputably false; it is a fair inference that the object of the author of the words (and of those displaying the poster) was to injure the plaintiff in his general reputation. The intent of the author or the publisher of a libel may be very relevant on the question of malice, but it does not determine the question whether the material complained of is or is not defamatory. In appropriate cases an action lies for wilful injurious malicious falsehood, and such an action is not governed by the stringent rules of libel and slander: this matter is dealt with in s. 20 of the Defamation Act, 1961. That is not the action before this Court, even though the material on the placard could be proved to be a malicious falsehood. In this case there is no allegation of express malice against the Irish Times in respect of their publication of the placard by its reproduction of the photograph in question.
The words in question, in the context in which they appear in the Irish Times photograph and in the news item of which the photograph forms a part, amount to an allegation that the plaintiff, by furnishing evidence or in some other way, had assisted in the prosecution to conviction of Lynch and O’Sullivan who were convicted in an English court of an offence against the laws of England. Is it necessarily defamatory to say of a person that he assisted in the conviction of some of his own fellow countrymen in a foreign country for an offence against the laws of that country, committed in that country, if the act alleged is such that if committed here it would amount to an offence against the laws of this country ” or, if it be not such, that it is an offence against a provision in the criminal code of another country which is not in itself repugnant to our concepts of law and justice; or when the procedure followed at the criminal trial in question is not one which by our standards of law and justice could be regarded only as a travesty of justice? No such allegation as this was made in the present case, nor was it any part of the plaintiff’s case to suggest that the words accused him of assisting in any such repugnant procedure.
It is perhaps surprising that the Supreme Court should be asked to hold, as a matter of law, that it is necessarily defamatory to say of one of the citizens of this country that he assisted in the bringing to justice in another country of a fellow countryman who broke the laws of that country and who was tried and convicted for that offence in the ordinary course of the administration of criminal justice. This Court is bound to uphold the rule of law and its decisions must be conditioned by this duty. Is the matter to be considered differently because the person or persons so convicted were motivated by a desire to resolve, by force of arms, a dispute existing between their own country and the country in which the offence was committed when there is not a state of war between the two countries? To say, in those circumstances, that such an allegation must be defamatory would be to hold that ordinary right-thinking people in this country could not condemn such militant activities ” to the extent that one could not but think that a person who assisted in curbing or putting down such militant activities was guilty of disgraceful conduct. That, in effect, is what was alleged against the plaintiff.
If the allegation was that the plaintiff did it as Secretary of the Department of Justice, then he would do so only on the authority of his Minister or of the Government. Alternatively, the allegation might convey that he did so independently of such authority; but unless it were claimed that in doing so he improperly and in breach of his trust as Secretary of the Department used information which came into his possession as such officer, for example, without the authority of his Minister or of the Government, the allegation must not necessarily be held to be defamatory. No such construction was attempted to be put upon these words. If it had been so, the action would have been of quite a different nature as such an accusation would really have been a reflection on the plaintiff’s fitness for his position.
The learned trial judge asked the jury to consider the case on the basis of whether the allegation, if true, was such as would make the plaintiff’s ordinary right-thinking neighbours think less of him. To that question the jury answered “No.” It cannot be held as a matter of law that his right-thinking neighbours, or any other right-thinking people in the community in Ireland, must necessarily think less of him for taking such action if he had done so. The fact that the allegation is false does not make it defamatory. The plaintiff in his own evidence said he understood it to suggest that he was “an informer.” If for historical reasons it is to be assumed that the word”informer” has a special and defamatory meaning and is, because of such special meaning, to be distinguished from the word “informant” which itself certainly is not defamatory in its ordinary meaning, the fact is that the word “informer” was not used in the publication complained of and no innuendo was pleaded to suggest that the words actually published were so understood. This ground of appeal must fail.
Was the trial unsatisfactory? This fourth ground of appeal was not in any way particularised in the notice of appeal. In the hearing of this appeal it has been sought to argue that the trial judge’s approach to the jury on the question of damages was such that he tended to diminish damages so much in the jury’s mind as perhaps to have caused the jury to think the matter was not defamatory at all. The judge’s direction to the jury quite clearly indicates that he rather expected them to find the words were defamatory, and the main theme in his address on the question of damages seems to have been to point out to the jury that no damage had been proved and not to encourage them to give extravagant damages. No objection whatsoever was taken to his direction to the jury at the trial, and there was not the slightest hint at the trial that what he said to the jury was in the least degree unsatisfactory or that his conduct of the case was unsatisfactory. This complaint was made for the first time in this Court. The judge’s treatment of the issue of damages, while certainly aimed at keeping the damages within moderate dimensions, could not in any way be construed as such a discouragement to the jury as in effect to encourage them to find that the words were not defamatory. This ground of appeal, as it appeared in the notice of appeal, gave no hint whatever that it related to the second question put to the jury and, in view of the fact that no requisition whatever was made on this subject at the trial, one may conclude that it did not convey that impression to those present. Under the fourth ground of appeal it was also objected that the trial judge’s interventions were so frequent and unfair to the plaintiff’s case as to render the trial unsatisfactory. There is no substance in this complaint.
In my opinion the appeal must fail. In the event it is not necessary to give any opinion on the special defence of privilege raised by the defendants.
WALSH J. :
I agree.
BUDD J. :
I agree.
FITZGERALD J. :”
The plaintiff has spent his adult life as an official of the Department of Justice; since 1961 he has held the position of Secretary of that Department. The defendants in their issue of the 25th September, 1970, published a photograph showing a man carrying a placard in a public street. The placard bore the inscription “Peter Berry ” 20th Century Felon Setter ” Helped Jail Republicans in England.” The plaintiff claims that this publication by the defendants is a libel on him and claims damages. The defendants, in their defence, did not deny publication but pleaded that the publication was privileged, that the plaintiff had suffered no damage, and pleaded further in mitigation of damages that he had brought other proceedings in respect of the same words against another newspaper.
It appears to me, and I think it would appear to any Irishman of normal experience and intelligence, that the words complained of were clearly a libel. “Felon-setter”and “Helped jail republicans in England” were not words in respect of which one has to have recourse to a dictionary to know what they meant to an Irishman; they were equivalent to calling him a traitor. The words are now admittedly untrue. They were a concoction by the author of the placard.
The defendants have pleaded that there was privilege. They have advanced no evidence of any sort to establish a claim to privilege. The trial judge acted correctly in not leaving any question on it to the jury, and in my view the effort to raise it in the Supreme Court clearly fails.
It is clear that the cross-examination of the plaintiff was mainly directed to the issue of damages. In the judge’s charge to the jury, he dealt almost exclusively with the issue of damages ” obviously anticipating that the jury would find that the words were defamatory.
Complaint was made on behalf of the plaintiff that the trial judge’s interventions had produced an unfair result but it has been suggested by counsel for the defendants that the interventions were in assistance of the plaintiff. Why a judge should presume to assist the plaintiff, who was represented by leading members of the Bar, I do not know. In any event, if that was the purpose of his interventions they were singularly ineffective.
In my view, a gross injustice was done to the plaintiff and the action should be re-tried. The meaning of the words was plainly defamatory and the jury should be so directed and the case re-tried on the issue of damages only.
MCLOUGHLIN J. :
I propose to deal first in this judgment with the grounds of appeal that the finding of the jury was unreasonable and perverse.
When I got the book of appeal the first document I saw was a photograph of a man carrying a placard with the words:”
“Peter Berry
20th Century
Felon Setter
Helped Jail
Republicans
in
England”
The impression this conveyed to me was that this publication was so clearly defamatory of the plaintiff that it was beyond all argument. It is important that I should state my first impression because it could well be, in my view, the first impression of others seeing no more than was seen by me in the photograph. To have one’s name displayed on a placard in the public street is something which most people would regard as objectionable. It is almost axiomatic that if one’s name is placarded one is blackguarded. Followed by the words “20th Century Felon Setter” makes it particularly obnoxious. What do the words mean? Literally, I suppose, designating some person a felon so that he may be proceeded against as such; but more, it means doing it in a malevolent way. As an expression it is clearly vituperative and reviling. The words which follow “Helped jail Republicans in England”do not take away from the vituperative nature of the expression “20th Century Felon Setter.” They seem to convey only the reason why he is so vilified. He is called a felon setter because he has designated republicans, by giving information as to names and locations, addresses perhaps in England, and so assisted the British authorities to have such persons jailed. Put in other words, the suggestion is that this Irishman, the plaintiff, has acted as a spy and informer for the British police concerning republicans in England, thus putting the plaintiff into the same category as the spies and informers of earlier centuries who were regarded with loathing and abomination by all decent people.
It is the fact that there is no evidence of the effect of this publication in the minds of persons who saw it. There is evidence of its effect on the plaintiff. Asked why the publication appalled and distressed him, he said:””I can think of nothing more ugly, more horrible in this life than to be called an informer. It has a peculiarly nauseating effect in Irish life. It was totally untrue.” Not only was he not cross-examined to suggest that this was not a reasonable reaction on his part to the publication but, on the contrary, it was suggested to him that placards with similar wording on an occasion prior to the publication by the defendants (one bearing the words “Quisling Berry” helped Britain to gaol Irish political prisoners”) were such that he would find them extremely offensive and hurtful.
Reading the charge of the learned trial judge, it is clear that he expected the jury to answer the second question in the affirmative. When charging on the question of damages he said:””Prima facie, as a matter of reasonable inference, to suggest of a person of his standing, a reputable public servant, that he is an informer would lower his reputation.” He then goes on to tell the jury in so many words that there was no evidence to indicate that his reputation was in fact lowered. I think the jury may have been misled into thinking that, because there was no evidence that his reputation was in fact lowered by the publication, the publication was not defamatory of him;although nowhere in the charge or in the evidence is there any indication that a view could be taken of the publication which was not defamatory.
A publication is defamatory of a person if it injures or tends to injure his good reputation in the minds of right-thinking people. That is a simple definition but the difficulty is to discover what is meant by “right-thinking people.” It does not mean all such people but only some such people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury. I put the matter squarely to Mr. Micks and he said that some right-thinking people might regard a publication as defamatory and other right-thinking people might come to a diametrically opposite conclusion.
This plaintiff, and plaintiffs in like cases, are up against a difficulty in this regard and the higher the reputation the greater the difficulty. Friends of the plaintiff, if asked what effect the publication had on their minds, would probably say something like this:””Oh, that scurrilous placard; of course I didn’t believe a word of it, your reputation is still good with me.” But there must be others whom he may not even know but who know him on account of his exalted position and good repute, who, taking the publication to be true, would toss him from his high pedestal and look on him with disgust and contempt; for what they would believe of him is that, having in his official capacity information about militant republicans in England, he went out of his way for private reasons, it being no part of his official duty to do so, to supply information to the British police authorities about such persons resulting in their being jailed in England.
An aspect of what the plaintiff was alleged to have done (viz., “helped jail republicans in England”) arose during the argument in this Court but not at the trial; I had not thought of it at the start. It could be put in this way. It is the policy of the Government to regard the actions of militant republicans in England as being injurious to the welfare of this country and, therefore, assistance given to jail them was consistent with this policy. To allow a jury to find that an allegation that the plaintiff had given such assistance was defamatory would amount to approval of the acts of militant republicans in England and to disapproval of the Government’s policy.
Logically, this is correct, but I cannot accept it entirely. While I accept that it is Government policy to regard the acts of militant republicans in England as being injurious to the welfare of the State, I am not aware that the Government counsels or encourages or approves either officials or private citizens to supply information to British police authorities with a view to having them jailed. I think it can fairly be inferred from the evidence given at the trial that no such information was ever supplied by the Department of Justice.
In this regard I think it is also relevant to refer to the Extradition Act, 1965. Under that Act if a warrant issued in England is brought here for endorsement and execution, and if the warrant is in respect of a political offence or an offence connected with a political offence, the person concerned shall not be handed over to the English police under the English warrant.16 In these circumstances the Minister for Justice has the power to direct that such an English warrant shall not be endorsed for execution here. Suppose a person had committed some act of a political nature for which he could be jailed in England. If before his arrest he escaped to and sought sanctuary in this country, he would not be handed over to the British police under an English warrant because of the Act of 1965.
It is my view that there must be many right-thinking persons who, although they do not approve of or positively disapprove of the acts of militant republicans in England, would regard the plaintiff with contempt if they believed that he had gone out of his way to supply information to the British police so as to have such persons jailed in England. It may be that one’s views on matters of this sort are conditioned by one’s up-bringing and education. The school sneak who, however justified, “splits to the head” was regarded with contempt by all his fellows.
For the reasons stated, I would not allow the jury’s answer to Question 2 to stand, and I would direct a new trial on damages only.
Mr. Micks argued before this Court the defence of qualified privilege, viz., a fair and accurate photographic report of a matter of public interest. I do not see that this Court can do anything about that matter as it does not appear from the transcript that it was made an issue at the trial.
A person’s good name deserves the special protection of the law: see Article 40, s. 3, of the Constitution.17 I do not think that the plaintiff’s good name has received that protection.
Solicitors for the plaintiff: Arthur Cox & Co.
Solicitors for the defendants: Hayes & Sons.
W.F.R.
Jameel v. Wall Street Journal Europe Sprl
[2006] UKHL 44
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
LORD BINGHAM OF CORNHILL
My Lords,
1. This appeal raises two questions on the law of libel. The first concerns the entitlement of a trading corporation such as the second respondent to sue and recover damages without pleading or proving special damage. The second concerns the scope and application of what has come to be called Reynolds privilege, an important form of qualified privilege.
2. The appellant is the publisher of The Wall Street Journal Europe, a respected, influential and unsensational newspaper (“the newspaper”) carrying serious news about international business, finance and politics. It is edited, published and printed in Brussels for distribution throughout Europe and the Middle East. It shares some editorial and journalistic personnel and facilities with its elder sister in New York, The Wall Street Journal, which has a large circulation in the United States.
3. The respondents, claimants in the proceedings, are Saudi Arabian. The first respondent is a prominent businessman and president of the Abdul Latif Jameel Group, an international trading conglomerate based in the Kingdom of Saudi Arabia comprising numerous companies and with interests in cars, shipping, property and distribution of electronic goods. The second respondent is a company incorporated in Saudi Arabia and is part of the Group. The first respondent is the general manager and president of the company, which does not itself own property or conduct any trade or business here, but which has a commercial reputation in England and Wales.
4. On 6 February 2002 the newspaper published the article which gave rise to these proceedings. It was headed “Saudi Officials Monitor Certain Bank Accounts” with a smaller sub-heading “Focus Is on Those With Potential Terrorist Ties”. It bore the by-line of James M Dorsey, an Arabic-speaking reporter with specialist knowledge of Saudi Arabia, and acknowledged the contribution of Glenn Simpson, a staff writer in Washington. The gist of the article, succinctly stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom’s central bank, was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to “U.S. officials and Saudis familiar with the issue”. In the second paragraph a number of companies and individuals were named, among them “the Abdullatif Jamil Group of companies” who, it was stated later in the article, “couldn’t be reached for comment”.
5. The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify.
6. The article was published some five months after the catastrophic events which took place in New York and Washington on 11 September 2001. During the intervening months the US authorities had taken determined steps, with strong international support, to cut off the flow of funds to terrorist organisations, including Al-Qaida. These steps were of particular importance in relation to Saudi Arabia, since a large majority of the suspected hijackers were of Saudi origin, and it was believed that much of their financial support came from Saudi sources. Yet the position of the Saudi authorities was one of some sensitivity. The Kingdom was an ally of the United States and condemned terrorism. But among its devoutly Muslim population there were those who resented the Kingdom’s association with the United States and espoused the cause of Islamic jihad. Thus there were questions about whether, and to what extent, the Kingdom was co-operating with the US authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the Kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known.
7. The trial of the action before Eady J and a jury lasted some three working weeks and culminated in verdicts for the respondents and awards of £30,000 and £10,000 respectively. Much evidence was called on both sides, of which the House has been referred to short excerpts only. The judge rejected the newspaper’s argument on the damage issue ([2003] EWHC 2945 (QB), [2004] 2 All ER 92) and the Court of Appeal agreed with him ([2005] EWCA Civ 74, [2005] QB 904). The judge also rejected the newspaper’s claim to Reynolds privilege ([2004] EWHC 37 (QB)). On this question also the Court of Appeal upheld his decision, but on a more limited ground. This calls for more detailed consideration.
8. The judge put a series of questions to the jury which, so far as relevant to Reynolds privilege, were directed to two matters: the sources on which Mr Dorsey, as reporter, relied; and his attempt to obtain the respondents’ response to his inclusion of their names in his proposed article. Mr Dorsey testified that he had relied on information given by a prominent Saudi businessman (source A), confirmed by a banker (source B), a US diplomat (source C), a US embassy official (source D) and a senior Saudi official (source E). In answer to the judge’s questions the jury found that the newspaper had proved that Mr Dorsey had received the information he claimed to have received from source A, but had not proved that Mr Dorsey had received the confirmation he claimed from sources B-E inclusive. The judge attached significance to these negative findings, since Mr Dorsey said in evidence that he would not have written the article in reliance on source A alone. In the Court of Appeal, the judge’s reliance on these negative findings was criticised by the newspaper. At the outset of his direction to the jury the judge had pointed out that there was no plea of justification and that therefore, if the jury found the article defamatory of the respondents, they should assume it to be untrue. This direction, it was said, may well have infected the jury’s approach to the questions concerning sources B-E. The Court of Appeal refused the newspaper leave to raise a new ground of misdirection, and thought (para 66) that the jury had “almost certainly” based their answers on the impression made by witnesses in court. But the Court of Appeal preferred to base its decision on the other ground relied on by the judge to deny privilege.
9. Mr Dorsey described attempts to obtain a response from the Group about his proposed article. He said he had telephoned the Group office at about 9.0 a.m. and left a recorded message. The jury found that the newspaper had not proved on the balance of probabilities that that was so. There was, it was agreed, a telephone conversation between Mr Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5 February, the day before publication. During that conversation, according to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for a comment by the Group. He had, he said, no authority to make a statement and the first respondent was in Japan, where the time was 3.0 a.m. Mr Dorsey denied that Mr Munajjed had asked him to wait. But the jury found that Mr Munajjed had made that request. It was on this ground, as I understand, that the Court of Appeal upheld the judge’s denial of Reynolds privilege:
“82. We turn to the judge’s observation that the Jameels were not given sufficient time to comment on the proposed publication. It was to this matter that the jury’s questions 6 and 7 were addressed. Mr Dorsey had given evidence that he had telephoned the Jameels’ offices on the morning before the publication and left a recorded message. The jury found that this did not take place. What the jury did find had taken place was that Mr Dorsey had spoken to the Jameels’ representative, Mr Munajjed, on the evening before publication, that the latter had asked for the publication to be postponed so that he could contact Mr Jameel, who was in Japan on business, and that Mr Dorsey had declined this request. The judge found that there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article. We can see no basis for challenging this conclusion, nor did Mr Robertson suggest that there was one.”
10. I turn to the two issues raised in the appeal.
I DAMAGE
11. The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it special damage. To resolve this question it is helpful to distinguish three sub-issues:
(1) whether such an entitlement exists under the current law of England and Wales;
(2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and
(3) whether, if not, the current domestic law should in any event be revised.
(1) The current domestic law
12. The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough.
13. It was argued in South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company (pp 134, 137). The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs (p 138). While he referred to obvious differences between individuals and companies (pp 138-139), his conclusion (p 139) was clear:
“Then, if the case be one of libel – whether on a person, a firm, or a company – the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case.”
There need be no evidence of particular damage (p 140). Lopes LJ agreed (p 141): a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed (p 148): a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.
14. In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party’s printed case, or in argument, or in any judgment.
15. Mr Robertson QC, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909, March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir (“Local Authority v Critical Ratepayer – a Suit in Defamation” (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect.
16. In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J’s conclusion that a local authority could sue: [1992] QB 770, 781, 783-788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company’s trading character and counsel for the local authority relied on it: ibid, pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir’s criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision ([1993] AC 534, 536-537). Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have (p 538). In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued (p 547):
“The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.”
Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading.
17. In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith’s reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.
(2) Article 10
18. Article 10 of the European Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The central importance of this article in the Convention regime is clear beyond question, and is reflected in section 12 of the Human Rights Act 1998. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. The newspaper in this case relies on article 10 to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by article 10.
Reynolds v. Times Newspapers Ltd and Others
[1999] UKHL 45; [1999] 4 All ER 609; [1999] 3 WLR 1010 [2000] EMLR 1, [2001] 2 AC 127, 7 BHRC 289, [2000] HRLR 134
LORD NICHOLLS OF BIRKENHEAD
My Lords,
This appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive. Mr. Reynolds’ contention, on the other hand, is that liability may also arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to have published the information as it did. Under the newspaper’s contention the safeguard for those who are defamed is exclusively subjective: the state of mind of the journalist. Under Mr. Reynolds’ formulation, there is also an objective element of protection.
The events giving rise to these proceedings took place during a political crisis in Dublin in November 1994. The crisis culminated in the resignation of Mr. Reynolds as Taoiseach (prime minister) of Ireland and leader of the Fianna Fáil party. The reasons for Mr. Reynolds’ resignation were of public significance and interest in the United Kingdom because of his personal identification with the Northern Ireland peace process. Mr. Reynolds was one of the chief architects of that process. He announced his resignation in the Dáil (the House of Representatives) of the Irish Parliament on Thursday, 17 November 1994. On the following Sunday, 20 November, the ‘Sunday Times’ published in its British mainland edition an article entitled ‘Goodbye gombeen man.’ The article was the lead item in its world news section and occupied most of one page. The article was sub-headed ‘Why a fib too far proved fatal for the political career of Ireland’s peacemaker and Mr. Fixit’. On the same day the Irish edition of the ‘Sunday Times’ contained a three page article headed ‘House of Cards’ concerning the fall of the Government. This article differed in a number of respects from the British mainland edition.
Mr. Reynolds took strong exception to the article in the British mainland edition. In the libel proceedings which followed, Mr. Reynolds pleaded that the sting of the article was that he had deliberately and dishonestly misled the Dáil on Tuesday, 15 November 1994 by suppressing vital information. Further, that he had deliberately and dishonestly misled his coalition cabinet colleagues, especially Mr. Spring, the Tanaiste (deputy prime minister) and minister for foreign affairs, by withholding this information and had lied to them about when the information had come into his possession. The author of the article was Mr. Ruddock, the newspaper’s Irish editor. Times Newspapers Ltd. was the publisher of the newspaper, and Mr. Witherow was the editor. They were defendants in the proceedings. The background facts are further elaborated in the judgment of the Court of Appeal, reported at [1998] 3 W.L.R. 862, 869-873. It was common ground before your Lordships that by instituting and prosecuting his libel action Mr. Reynolds had waived his immunity under the Irish constitution in respect of proceedings in the Dáil. His ability to do so was not questioned in your Lordships’ House.
The action was tried by French J. and a jury between 14 October and 19 November 1996. The issues at the trial were: the meaning of the article, qualified privilege at common law, justification, malice and damages. During the trial the defendants abandoned pleaded defences that the words were fair comment on a matter of public interest and that they were a fair and accurate report of proceedings in public of the Irish legislature.
The jury verdict took the form of answers to questions. The jury decided that the defamatory allegation of which Mr. Reynolds complained was not true. So the defence of justification failed. The jury decided that Mr. Ruddock was not acting maliciously in writing and publishing the words complained of, nor was Mr. Witherow. So, if the occasion was privileged, and that was a question for the judge, the defence of qualified privilege would succeed. Despite their rejection of the defence of justification, the jury awarded Mr. Reynolds no damages. The judge substituted an award of one penny. In the light of this nil award, costs were the only remaining issue. On this the defence of qualified privilege was still a live question. If this defence was available to the defendants, they had a complete defence to the action, and the judge would have ordered Mr. Reynolds to pay the defendants’ costs of the action. The judge then heard submissions on the question of qualified privilege. The defendants unsuccessfully contended for a wide qualified privilege at common law for ‘political speech’. The judge ruled that publication of the article was not privileged.
Mr. Reynolds appealed, contending that the judge had misdirected the jury in certain respects. The defendants cross-appealed against the judge’s decision on the qualified privilege point. The Court of Appeal, comprising Lord Bingham of Cornhill C.J., Hirst L.J. and Robert Walker L.J., allowed Mr. Reynolds’ appeal. They concluded, with regret because of the consequences for the parties, that the misdirections identified by the court were, cumulatively, such as to deny Mr. Reynolds a fair trial of his claim. They set aside the verdict,finding and judgment of the court below and ordered a new trial. The Court of Appeal also considered whether the defendants would be able to rely on qualified privilege at the retrial. The court held they would not. Your Lordships’ House gave leave to the defendants to appeal against this ruling, since it raised an issue of public importance. That is the issue now before your Lordships.
Defamation and truth
The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person’s reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in McPherson v. Daniels (1829) 10 B. & C. 263, 272, ‘the law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess’. Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.
The common law has long recognised the ‘chilling’ effect of this rigorous, reputation protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.
Honest comment on a matter of public interest
One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been regarded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode (1863) 3 B. & S. 769, 779, that ‘it is the right of all the Queen’s subjects to discuss public matters’. The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 QB 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued:
‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.’
Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet ‘fair’ is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it: see Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, 747.
It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made: see the discussion in Duncan and Neill on Defamation, 2nd ed. (1983), pp. 58-62.
One constraint does exist upon this defence. The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail.
Privilege: factual inaccuracies
The defence of honest comment on a matter of public interest, then, does not cover defamatory statements of fact. But there are circumstances, in the famous words of Parke B. in Toogood v. Spyring (1834) 1 C.M. & R. 181, 193, when the ‘common convenience and welfare of society’ call for frank communication on questions of fact. In Davies v. Snead (1870) L.R. 5 Q.B. 608, 611, Blackburn J. spoke of circumstances where a person is so situated that it ‘becomes right in the interests of society’ that he should tell certain facts to another. There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.
Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege, as with statements made by judges or advocates or witnesses in the course of judicial proceedings. More usually, the privilege is qualified in that it can be defeated if the plaintiff proves the defendant was actuated by malice.
The classic exposition of malice in this context is that of Lord Diplock in Horrocks v. Lowe [1975] A.C. 135, 149. If the defendant used the occasion for some reason other than the reason for which the occasion was privileged he loses the privilege. Thus, the motive with which the statement was made is crucial. If desire to injure was the dominant motive the privilege is lost. Similarly, if the maker of the statement did not believe the statement to be true, or if he made the statement recklessly, without considering or caring whether it was true or not. Lord Diplock. at p. 150, emphasised that indifference to truth is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true:
‘In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.’
Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted:
‘. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.
The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice.
In determining whether an occasion is regarded as privileged the court has regard to all the circumstances: see, for example, the explicit statement of Lord Buckmaster L.C.in London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23 (‘every circumstance associated with the origin and publication of the defamatory matter’). And circumstances must be viewed with today’s eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.
Privilege and publication to the world at large
Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney (1863) 4 F. & F. 13, 19, Cockburn C.J. approved an earlier statement by Lord Tenterden C.J. that ‘a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know’. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.
This issue has arisen several times in the context of newspapers discharging their important function of reporting matters of public importance. Two instances will suffice, together with one instance of the publication in book form of information originating with the publisher. Purcell v. Sowler (1877) 2 C.P.D. 215 concerned a newspaper report of a public meeting of poor-law guardians. During the meeting the medical officer of the workhouse at Knutsford was said to have neglected to attend pauper patients when sent for. In deciding that publication of this allegation was not privileged, the Court of Appeal looked beyond the subject-matter. The court held that the administration of the poor-law was a matter of national concern, but there was no duty to report charges made in the absence of the medical officer and without his having had any opportunity to meet them. The meeting was a privileged occasion so far as the speaker was concerned, but publication in the press was not. In Allbutt v. General Council of Medical Education and Registration (1889) 23 Q.B.D. 400, 410, the defendants published a book containing minutes of a meeting of the council recording that the plaintiff’s name had been removed from the medical register for infamous professional conduct. This was after an inquiry at which the plaintiff had been represented by counsel. The Court of Appeal held that the publication was privileged. Giving the judgment of the court, Lopes L.J. expressly had regard to the nature of the tribunal, the character of the report, the interests of the public in the proceedings of the council and the duty of the council towards the public. Perera v. Peiris [1949] AC 1, 21, was an appeal to the Privy Council from the Supreme Court of Ceylon. The ‘Ceylon Daily News’ had published extracts from a report of the Bribery Commission which was critical of Dr. Perera’s lack of frankness in his evidence. The Judicial Committee upheld a claim to qualified privilege. In the light of the origin and contents of the report and its relevance to the affairs of Ceylon, the due administration of the affairs of Ceylon required that the report should receive the widest publicity.
The courts have recognised that the status and activities of certain bodies are such that members of the public are entitled to know of their proceedings. Then privilege derives from the subject-matter alone. Fair and accurate reports of the proceedings of these organisations are privileged. A leading instance is Wason v. Walter (1868) L.R. 4 Q.B. 73, 89, concerning newspaper reports of debates in Parliament. The Court of Queen’s Bench held, by analogy with reports of judicial proceedings, that fair and accurate reports of parliamentary proceedings were privileged. Cockburn C.J. observed that it was of paramount public and national importance that the proceedings of either House of Parliament should be communicated to the public ‘who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends’.
In Webb v. Times Publishing Co. Ltd. [1960] 2 Q.B. 535 the defendants attempted to obtain similar blanket (or ‘generic’) protection for another category of subject-matter: reports of foreign judicial proceedings. There ‘The Times’ newspaper had published a report of the criminal trial in Switzerland of a British subject. Pearson J. rejected this approach, but he upheld the claim to privilege by applying the general principle enunciated in the line of authorities exemplified by Cox v. Feeney 4 F. & F. 13, Allbutt v. General Council of Medical Education and Registration 23 Q.B.D. 400 and Perera v. Peiris [1949] AC 1.
Similarly, in Blackshaw v. Lord [1984] 1 Q.B. 1, 6 the Court of Appeal rejected a claim to generic protection for a widely stated category: ‘fair information on a matter of public interest’. A claim to privilege must be more precisely focused. In order to be privileged publication must be in the public interest. Whether a publication is in the public interest or, in the conventional phraseology, whether there is a duty to publish to the intended recipients, there the readers of the ‘Daily Telegraph’, depends upon the circumstances, including the nature of the matter published and its source or status.
The decision of the Court of Appeal in Braddock v. Bevins [1948] 1 K.B. 580, on which the appellant newspaper placed some reliance, is consistent with this approach. The court held that Mr. Bevins’ election address at a local election was the subject of qualified privilege. In reaching its conclusion the court applied the classic requirements necessary to confer qualified privilege: see the judgment of Lord Greene M.R., at pp. 589-590. This decision was reversed by section 10 of the Defamation Act 1952:
‘A defamatory statement published by or on behalf of a candidate in any election to a local government authority or to Parliament shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election.’
Parliament seems to have taken the view that the defence of comment on a matter of public interest provided sufficient protection for election addresses. Whether this statutory provision can withstand scrutiny under the Human Rights Act 1998 is not a matter to be pursued on this appeal. Suffice to say, Braddock v. Bevins did not place election communications into a special category.
In Derbyshire County Council v. Times Newspapers Ltd. [1993] AC 534 this House held that it was contrary to the public interest for organs of central or local government to have any right at common law to maintain an action for defamation. This is an instance, in the field of political discussion, of the court’s concern to remove all unnecessary fetters on freedom of speech. Beyond that, this decision does not assist in the present appeal.
In its valuable and forward-looking analysis of the common law the Court of Appeal in the present case highlighted that in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question (‘the circumstantial test’) separate from, and additional to, the conventional duty-interest questions: see [1998] 3 W.L.R. 862, 899. With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement.
Statutory privilege
Many, if not all, of the common law categories of case where reports of proceedings attract privilege are now the subject of statutory privilege. Successive statutes have extended the categories. The Law of Libel Amendment Act 1888 granted qualified privilege to fair and accurate reports published in newspapers of a limited range of public meetings. In 1948 the Report of the Committee on the Law of Defamation (Cmd. 7536), chaired by Lord Porter, recommended that the classes of reports subject to qualified privilege should be extended, and that they should be re-classified into two categories: those where statements were privileged without explanation or contradiction, and those where privilege was conditional on publication on request of a letter or statement by way of explanation or contradiction. The Defamation Act 1952 gave effect to these recommendations. Among the publications having qualified privilege without explanation or contradiction was a fair and accurate report of proceedings in public of the Irish legislature. Until abandoned, this was one of the defendants’ pleaded defences in the present proceedings.
In 1975 the committee on defamation chaired by Faulks J. considered a proposal that a statutory qualified privilege should be created to protect statements made, whether in a newspaper or elsewhere, if the matter was of public interest and the publisher believed the statement of facts was true and he had taken reasonable care in relation to such facts. In its report (Cmnd. 5909) the committee did not accept this proposal. The committee considered this would seriously alter the balance of the law of defamation against a defamed plaintiff. The committee noted that the common law defence of qualified privilege was available to the media as much as anyone else, and referred to the Cox v. Feeney line of cases.
In 1991 the Supreme Court Procedure Committee, chaired by Neill L.J., in its Report on Practice and Procedure in Defamation considered that fair and accurate coverage by the British media of statements and proceedings abroad ought to be protected by qualified privilege in circumstances which would attract privilege if comparable statements or proceedings occurred in this country. The committee recommended this result should be achieved by statute. The committee regarded the ‘duty’ test as too stringent in modern conditions and productive of too much uncertainty. The committee was opposed to the introduction of a defence similar to the ‘public figure’ defence enunciated by the United States Supreme Court in New York Times Co. v. Sullivan (1964) 376 U.S. 254.
The Defamation Act 1996 broadly gave effect to the Neill committee recommendations. The Act contained an extended list of categories of statutory qualified privilege. In the Act of 1996 and the Act of 1952 statutory privilege was additional to any common law privilege, but did not protect publication of any matter which was not of public concern and the publication of which was not for the public benefit: see section 15 of the Act of 1996 and section 7 of the Act of 1952.
In other countries
Before turning to the issues raised by this appeal mention must be made, necessarily briefly, of the solutions adopted in certain other countries. As is to be expected, the solutions are not uniform. As also to be expected, the chosen solutions have not lacked critics in their own countries.
In the United States the leading authority is the well-known case of New York Times Co. v. Sullivan 376 U.S. 254. Founding itself on the first and fourteenth amendments to the United States Constitution, the Supreme Court held that a public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves, with convincing clarity, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. This principle has since been applied to public figures generally.
In Canada the Supreme Court, in Hill v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129, rejected a Sullivan style defence, although that case did not concern political discussion. The Supreme Court has not had occasion to consider this issue in relation to political discussion.
In India the Supreme Court, in Rajagopal v. State of Tamil Nadu (1994) 6 S.C.C. 632, 650, held that a public official has no remedy in damages for defamation in matters relating to his official duties unless he proves the publication was made with reckless disregard of the truth or out of personal animosity. Where malice is alleged it is sufficient for the defendant to prove he acted after a reasonable verification of the facts.
In Australia the leading case is Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The High Court held unanimously that qualified privilege exists for the dissemination of information, opinions and arguments concerning government and political matters affecting the people of Australia, subject to the publisher proving reasonableness of conduct. The High Court regarded its decision as an extension of the categories of qualified privilege, and considered that the reasonableness requirement was appropriate having regard to the greater damage done by mass dissemination compared with the limited publication normally involved on occasions of common law qualified privilege. As a general rule a defendant’s conduct in publishing material giving rise to a defamatory imputation would not be reasonable unless the defendant had reasonable grounds for believing the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Further, the defendant’s conduct would not be reasonable unless the defendant sought a response from the person defamed and published the response, except where this was not practicable or was unnecessary.
In South Africa the issue has not been considered by the Constitutional Court. In National Media Ltd. v. Bogoshi 1998 (4) S.A. 1196, 1212 the Supreme Court of Appeal broadly followed the approach of the Court of Appeal in the present case and the Australian High Court in the Lange case. Press publication of defamatory statements of fact will not be regarded as unlawful if, upon consideration of all the circumstances, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.In considering the reasonableness of the publication account must be taken of the nature, extent and tone of the allegations. Greater latitude is usually to be allowed in respect of political discussion.
In New Zealand the leading case is the Court of Appeal decision in Lange v. Atkinson [1998] 3 N.Z.L.R. 424. The Court of Appeal held that members of the public have a proper interest in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those seeking election. General publication of such statements may therefore attract a defence of qualified privilege. The exercise of reasonable care by the defendant is not a requirement of this defence. This decision is currently under appeal to the Privy Council. The Judicial Committee heard this appeal shortly before the Appellate Committee of your Lordships’ House, similarly constituted, heard the parties’ submissions on the present appeal.
A new category of privileged subject-matter?
I turn to the appellants’ submissions. The newspaper seeks the incremental development of the common law by the creation of a new category of occasion when privilege derives from the subject-matter alone: political information. Political information can be broadly defined, borrowing the language used by the High Court of Australia in the Lange case, as information, opinion and arguments concerning government and political matters that affect the people of the United Kingdom. Malice apart, publication of political information should be privileged regardless of the status and source of the material and the circumstances of the publication. The newspaper submitted that the contrary view requires the court to assess the public interest value of a publication, taking these matters into account. Such an approach would involve an unpredictable outcome. Moreover, it would put the judge in a position which in a free society ought to be occupied by the editor. Such paternalism would effectively give the court an undesirable and invidious role as a censor or licensing body.
These are powerful arguments, but I do not accept the conclusion for which the newspaper contended. My reasons appear from what is set out below.
My starting point is freedom of expression. The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions. Freedom of expression will shortly be buttressed by statutory requirements. Under section 12 of the Human Rights Act 1998, expected to come into force in October 2000, the court is required, in relevant cases, to have particular regard to the importance of the right to freedom of expression. The common law is to be developed and applied in a manner consistent with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Cmd. 8969), and the court must take into account relevant decisions of the European Court of Human Rights (sections 6 and 2). To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.
Likewise, there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally.
Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe [1975] A.C. 135 sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff’s ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a ‘scoop’, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles.. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.
As high-lighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may ‘chill’ the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection. The contrary approach, which would involve no objective check on the media, drew a pertinent comment from Tipping J. in Lange v. Atkinson [1998] 3 N.Z.L.R. 424, 477:
‘It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others, should not also to this extent be required of the news media.’
The common law approach does mean that it is an outside body, that is, some one other than the newspaper itself, which decides whether an occasion is privileged. This is bound to be so, if the decision of the press itself is not to be determinative of the propriety of publishing the particular material. The court has the advantage of being impartial, independent of government, and accustomed to deciding disputed issues of fact and whether an occasion is privileged. No one has suggested that some other institution would be better suited for this task.
For the newspaper, Lord Lester’s fall-back position was that qualified privilege should be available for political discussion unless the plaintiff proved the newspaper failed to exercise reasonable care. One difficulty with this suggestion is that it would seem to leave a newspaper open to publish a serious allegation which it had been wholly unable to verify.Depending on the circumstances, that might be most unsatisfactory. This difficulty would be removed if, as also canvassed by Lord Lester, the suggested limitation was stated more broadly, and qualified privilege was excluded if the plaintiff proved that the newspaper’s conduct in making the publication was unreasonable. Whether this test would differ substantially from the common law test is a moot point. There seems to be no significant practical difference between looking at all the circumstances to decide if a publication attracts privilege, and looking at all the circumstances to see if an acknowledged privilege is defeated.
I have been more troubled by Lord Lester’s suggested shift in the burden of proof. Placing the burden of proof on the plaintiff would be a reminder that the starting point today is freedom of expression and limitations on this freedom are exceptions. That has attraction. But if this shift of the onus were applied generally, it would turn the law of qualified privilege upside down. The repercussions of such a far-reaching change were not canvassed before your Lordships. If this change were applied only to political information, the distinction would lack a coherent rationale. There are other subjects of serious public concern. On balance I favour leaving the onus in its traditional place, on him who asserts the privilege, for two practical reasons. A newspaper will know much more of the facts leading up to publication. The burden of proof will seldom, if ever, be decisive on this issue.
For Mr. Reynolds, Mr. Caldecott submitted that in the context of political speech a report which ‘failed to report the other side’ should always fail the common law test and, further, that there should be a burden on the newspaper to establish a cogent reason why it should be excused from proving the truth of the assertion. I cannot accept either of these suggested requirements. Failure to report the plaintiff’s explanation is a factor to be taken into account. Depending upon the circumstances, it may be a weighty factor. But it should not be elevated into a rigid rule of law. As to the second requirement, it is not clear to what extent, and in what respects, this suggestion covers ground different from the ground already covered by the common law principle.
Human rights jurisprudence
The common law approach accords with the present state of the human rights jurisprudence. The immensely influential judgment in Lingens v. Austria (1986) 8 EHRR 407 concerned expressions of opinion, not statements of fact. Mr. Lingens was fined for publishing in his magazine in Vienna comments about the behaviour of the Federal Chancellor, Mr. Kreisky: ‘basest opportunism’, ‘immoral’ and ‘undignified’. Under the Austrian criminal code the only defence was proof of the truth of these statements. Mr. Lingens could not prove the truth of these value judgments, because Mr. Kreisky’s behaviour was capable of more than one interpretation. In a passage, often overlooked, at pp. 420-1, in para. 46 of its judgment, the European Court of Human Rights stated that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The facts on which Mr. Lingens founded his value judgments were undisputed, as was his good faith. Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention. The court has subsequently reiterated the distinction between facts and value judgments in De Haes and Gijsels v. Belgium (1997) 25 E.H.R.R. 1, 54 at para. 42.
In Fressoz and Roire v. France (unreported), 21 January 1999, Case No. 29183/95, paragraph 54, the court adverted to the need for accuracy on matters of fact. Article 10 protects the right of journalists to divulge information on issues of general interest provided they are acting in good faith and on ‘an accurate factual basis’ and supply reliable and precise information in accordance with the ethics of journalism. But a journalist is not required to guarantee the accuracy of his facts. Bladet Tromso and Stensaas v. Norway (unreported), 20 May 1999, Case No. 21980/93 involved newspaper allegations of fact: cruelty by seal hunters. The Court of Human Rights considered whether the newspaper had a reasonable basis for its factual allegations. Similarly, in Thorgeirson v. Iceland (1992) 14 EHRR 843 two newspaper articles reported widespread rumours of brutality by the Reykjavik police. These rumours had some substantiation in fact: a policeman had been convicted recently. The purpose of the articles was to promote an investigation by an independent body. The court held that although the articles were framed in particularly strong terms, they bore on a matter of serious public concern. It was unreasonable to require the writer to prove that unspecified members of the Reykjavik police force had committed acts of serious assault resulting in disablement.
None of these three latter cases involved political discussion, but for this purpose no distinction is to be drawn between political discussion and discussion of other matters of public concern: see the Thorgeirson case, at pp. 863-4, 865 para. 61, 64.
Conclusion
My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop ‘political information’ as a new ‘subject-matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.
In general, a newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.
Privilege and the facts of this case
The appellant newspaper’s primary submission was that they never had the opportunity of pleading and proving a case that the ‘circumstantial test’ was satisfied, because this test had not been formulated until the Court of Appeal gave judgment. I am not persuaded by this line of argument. Mr. Reynolds’ case before the judge was that all the circumstances had to be taken into account. He specifically relied on the gravity of the charge, the presentation of lying as an allegation of fact and not as an opinion or value judgment, the omission of Mr. Reynolds’ defence as given by him in the Dail debate on Wednesday, 16 November 1994, and the difference between the versions in the mainland and Irish editions. In the exercise of its discretion the Court of Appeal decided to rule on the issue of qualified privilege, rather than leave this matter to be dealt with by the trial judge at the re-trial.
I can see no sufficient ground for interfering with that decision. Further, despite the defendants’ criticisms of some of the grounds set out by the Court of Appeal at [1998] 3 W.L.R. 862, 911-912, the facts relied upon by Mr. Reynolds before the judge were clear and undisputed. A most telling criticism of the article is the failure to mention Mr. Reynolds’ own explanation to the Dáil. Mr. Ruddock omitted this from the article because he rejected Mr. Reynolds’ version of the events and concluded that Mr. Reynolds had been deliberately misleading. It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But this cannot be a good reason for omitting, from a hard-hitting article making serious allegations against a named individual, all mention of that person’s own explanation. Particularly so, when the press offices had told Mr. Ruddock that Mr. Reynolds was not giving interviews but would be saying all he had to say in the Dáil. His statement in the Dáil was his answer to the allegations. An article omitting all reference to this statement could not be a fair and accurate report of proceedings in the Dáil. Such an article would be misleading as a report. This article is not defended as a report, but it was misleading nonetheless. By omitting Mr. Reynolds’ explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any explanation already given. An article which fails to do so faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true.
Was the information in the ‘Sunday Times’ article information the public was entitled to know? The subject matter was undoubtedly of public concern in this country. However, these serious allegations by the newspaper, presented as statements of fact but shorn of all mention of Mr. Reynolds’ considered explanation, were not information the public had a right to know. I agree with the Court of Appeal this was not a publication which should in the public interest be protected by privilege in the absence of proof of malice. The further facts the defendants wish to assert and prove at the retrial would make no difference, either on this point or overall. I would dismiss this appeal.
LORD STEYN
My Lords,
I gratefully adopt the account of the background given by Lord Bingham of Cornhill, C.J., in sections I, II, and III of the judgment of the Court of Appeal (reported at [1998] 3 W.L.R. 862, 868H-876F), as well as the summary given by my noble and learned friend Lord Nicholls of Birkenhead. I therefore turn directly to the central issues.
The New Landscape
Important issues regarding the reconciliation of the colliding right of free speech and the right to reputation need to be considered in the light of the new legal landscape. In what was at the time regarded as a classic direction on fair comment to the jury Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1. W.L.R. 743, 746 observed:
“In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.”
The present case involves a defamatory and factually false statement which the newspaper honestly believed to be true. If the observation of Diplock J. is taken not only as the starting point but as reflecting an absolute rule, there would be no room for any qualified privilege in respect of political speech. But the law has not stood still. In Attorney-General v.Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 283-4, Lord Goff of Chieveley observed that there was in principle no difference between article 10 of the European Convention of Human Rights and the English law of confidence. Article 10 is in the following terms:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers . . . 2. The exercise of these freedoms, since it carriers with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In Derbyshire County Council v. Times Newspaper Ltd. [1993] AC 534, 551G, Lord Keith of Kinkel, speaking for a unanimous House, endorsed in a carefully considered passage Lord Goff’s observations in the context of article 10 of the Convention and the law of defamation.
It is worth considering why Lord Goff and Lord Keith could so confidently assert that the law of England and article 10 of the Convention is the same. In my judgment the reasons are twofold. First, there is the principle of liberty. Whatever is not specifically forbidden by law individuals and their enterprises are free to do: see Lord Goff, at p. 283G, where he stated that in England “everybody is free to do anything, subject only to the provisions of the law.” By contrast the executive and judicial branches of government may only do what the law specifically permits. Secondly, there is a constitutional right to freedom of expression in England: see Broome v. Cassell & Co. Ltd. [1972] AC 1027, 1133 A-B per Lord Kilbrandon. By categorising this basic and fundamental right as a constitutional right its higher normative force is emphasised. These are perhaps some of the considerations which enabled Lord Goff in 1988 and Lord Keith in 1993 to hold that article 10 of the Convention and the English law on the point are in material respects the same. Now the Human Rights Act 1998, which will corporate the Convention into our legal order, is on the statute book. And the government has announced that it will come into force on 2 October 2000. The constitutional dimension of freedom of expression is reinforced. This is the backcloth against which the present appeal must be considered. It is common ground that in considering the issues before the House, and the development of English law, the House can and should act on the reality that the Human Rights Act 1998 will soon be in force.
The new landscape is of great importance inasmuch as it provides the taxonomy against which the question before the House must be considered. The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation.
The Issues
The issues to decide are as follows: (1) Is there a generic qualified privilege extending to publication by a newspaper to the public at large of information including assertions of fact concerning government and political matters which affect the people of the United Kingdom? If there is such a generic qualified privilege, the appeal must succeed. If the answer is in the negative, further issues arise. (2) After stating the traditional issues of duty and interest applicable to qualified privilege, the Court of Appeal enunciated what it described as “a circumstantial test.” The second issue is whether that test is correct in law. (3) If neither the generic test nor the circumstantial test is correct, what is the applicable law regarding qualified privilege in respect of political speech containing a defamatory and factually false statement which was honestly believed to be true? Under this heading the requirements and conditions applicable to such a qualified privilege (if any) are in dispute. (4) Whatever test is laid down, what are the respective functions of judge and jury? (5) Depending on the way the issues of law are resolved, should the decision of the Court of Appeal be affirmed or should it be quashed? (6) What order should be made?
Issue (1): Generic qualified privilege and political speech.
Counsel for the newspaper did not invite your Lordships to develop English law in line with the landmark case of New York Times Co. v. Sullivan (1964) 376 U.S. 254. The United States Supreme Court unanimously held that a public official could not succeed in an action for libel without proving that the defendant was actuated by actual malice, that is, at least with a reckless disregard of the truth. The question was whether a particular advertisement forfeited constitutional protection by reason of the falsity of some of the factual statements and the alleged defamation of a public official. The Supreme Court declared the relevant state law unconstitutional. In the present case counsel for the newspaper cited passages from the classic judgment of Brennan J. in the Sullivan case about the chilling effect on freedom of speech of too broad a defamation law. Perhaps for present purposes the most important passage is the following (at pp. 278-279):
“The state rule of law is not saved by its allowance of the defence of truth. . . . A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions–and to do so on pain of libel judgments virtually unlimited in amount–leads to a comparable ‘self-censorship.’ Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ . . . The rule thus dampens the vigour and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.”
Given the limited way in which counsel used the Sullivan case I need not explore the subsequent development of the doctrine in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 and other cases.
Counsel submitted that the House should recognise a qualified privilege extending to the publication by a newspaper to the public at large of factual information, opinions and arguments concerning government and political matters that affect the people of the United Kingdom. For convenience, I will call this a generic qualified privilege of political speech. A distinctive feature of political speech published by a newspaper is that it is communicated to a large audience. And this characteristic must be kept in mind in weighing the arguments in the present case. It is further essential not to lose sight of the factual framework in which the question arises, namely a defamatory and factually incorrect statement which the newspaper believed to be true.
It is now necessary to explain what is meant by a generic qualified privilege. It is to be contrasted with each case being considered in the light of its own particular circumstances, that is, in an ad hoc manner, in the light of the concrete facts of the case, and balancing in each case the gravity of the damage to the plaintiff’s reputation against the value of publication on the particular occasion. A generic privilege, on the other hand, uses the technique of applying the privilege to a category or categories of cases. An example is the rule in the Sullivan case, which requires proof of malice in all defamation actions by public officials and public figures. In the present case counsel for the newspaper argues for a generic test not applicable to a category of victim (such as public figures) but dependent on the subject matter (political speech).
This is a branch of law in which common law courts have arrived at sharply divergent solutions. In the Sullivan case the United States Supreme Court upheld a public figure defence. In Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 the Australian High Court allowed a qualified privilege of political speech subject to a requirement of due care. In impressive and valuable judgments Elias J. (now Chief Justice) and the Court of Appeal of New Zealand allowed a generic defence of free speech, the rationale of the decisions being policy considerations applicable to New Zealand: Lange v. Atkinson [1997] 2 N.Z.L.R. 22 and [1998] 3 N.Z.R. 424. And in Reynolds v. Times Newspaper Limited [1998] 3 W.L.R. 862 the Court of Appeal enunciated a circumstantial test depending substantially on the source of the information. There are at stake powerful competing arguments of policy. They pull in different directions. It is a hard case in which it is unrealistic to say that there is only one right answer. And in considering the decisions in other jurisdictions it is right to take into account that cultural differences have played an important role.
Counsel for Mr. Reynolds submitted that a generic qualified privilege of political speech, defeasible only by proof of malice or reckless disregard of the truth, would make the prospect of suing a newspaper which published defamatory and false allegations about a politician without checking the facts unduly difficult.óKóóK On the other hand, counsel for the newspaper argued that in the case of an unchecked publication alleging grave misconduct the newspaper would be at significant risk of an adverse jury verdict on the ground of recklessness. He submitted that in the absence of a generic qualified privilege investigative journalism into political matters is inadequately protected. He argued that the generic test will result in more predictable decisions. And he emphasised that it would be consistent with the spirit of the new legal landscape to develop the law in this way.
Weir, A Casebook on Tort, 8th ed., (1996) describes defamation as “the oddest” of the torts. He explains (at p. 525):
“he (the plaintiff) can get damages (swingeing damages!) for a statement made to others without showing that the statement was untrue, without showing that the statement did him the slightest harm, and without showing that the defendant was in any way wrong to make it (much less that the defendant owed him any duty of any kind)”
Weir, at p. 530, observes that “the courts could arguably have done more to prevent the law becoming as absurd, complex and unfair as it is, without resigning themselves to saying, as Diplock L.J. did, that the law of defamation “has passed beyond redemption by the courts” (Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 179). Weir states that “the law of England is certainly stricter than that of any free country . . .” at p. 528. The argument for addressing the chilling effect of our defamation law on political speech and for striking a better balance between freedom of speech and defamation is strong: see Eric Barendt and others, Libel and the Media: The Chilling Effect, (1997), Clarendon Press, Oxford, pp. 191-192. But the burden is on counsel for the newspaper to demonstrate that the development he advocated would in practice be fair and workable, and could sensibly be accommodated in our legal system.
On balance two particular factors have persuaded me to reject the generic test. First, the rule and practice in England is not to compel a newspaper to reveal its sources: see section 10 of the Contempt of Court Act 1981; R.S.C., Ord. 82, r.6; and Goodwin v. United Kingdom (1996) 22 EHRR 123, 143 at para. 39. By contrast a plaintiff in the United States is entitled to a pre-trial enquiry into the sources of the story and editorial decision-making: Herbert v. Lando (1979) 441 U.S. 153. Without such information a plaintiff suing for defamation in England will be substantially handicapped. Counsel for the newspaper observed that the House could recommend a reform of the procedural rule. This is an unsatisfactory basis to embark on a radical development of the law. Given the procedural restrictions in England I regard the recognition of a generic qualified privilege of political speech as likely to make it unacceptably difficult for a victim of defamatory and false allegations of fact to prove reckless disregard of the truth. Secondly, a test expressed in terms of a category of cases, such as political speech, is at variance with the jurisprudence of the European Court of Human Rights which in cases of competing rights and interests requires a balancing exercise in the light of the concrete facts of each case. While there is as yet no decision directly in point, it seems to me that Professor John Fleming is right in saying that the basic approach of the European Court of Human Rights has been close to the German approach by insisting on individual evaluation of each case rather than categories: “Libel and Constitutional Free Speech,” in Essays for Patrick Atiyah, ed. Cane and Stapleton (1991), p. 333 at pp .337 and 345. Our inclination ought to be towards the approach that prevails in the jurisprudence on the Convention. In combination these two factors make me sceptical of the value of introducing a rule dependent on general categorisation, with the attendant sacrifice of individual justice in particular cases.
I would answer question (1) by saying that there is no generic qualified privilege of political speech in England.
Issue (2): Soundness of the circumstantial test
My Lords, it is important to appreciate that the judgment of the Court of Appeal marked a development of English law in favour of freedom of expression. In the context of political speech the judgment recognised a qualified privilege, dependent on the particular circumstance of the case, provided that three requirements are fulfilled. The first and second are the familiar requirements of duty and interest. The Court of Appeal then stated a third and separate requirement. The passage in the judgment reads as follows (at pp. 899G-900B):
“Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice? (We call this the circumstantial test.)
“We make reference to ‘status’ bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect . . . The higher the status of a report, the more likely it is to meet the circumstantial test. Conversely, unverified information from unidentified and unofficial sources may have little or no status, and where defamatory statements of fact are to be published to the widest audience on the strength of such sources, the publisher undertakes a heavy burden in showing that the publication is ‘fairly warranted by any reasonable occasion or exigency.'”
Later in the judgment the Court of Appeal observed (pp. 909H-910C):
“It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.” (Emphasis supplied)
The circumstantial test was not put forward in the Court of Appeal by either side or raised in argument. But the development was well within the power of the Court of Appeal. On balance, however, I am satisfied that the support for it in the authorities is not great. Except for obiter dicta in Blackshaw v. Lord [1984] Q.B. 1, 42 the other decisions relied on by the Court of Appeal (see [1998] 3 W.L.R. 862, 894H-899D) are cases of institutional reporting which are materially different fromóKóóK reports resulting from investigative journalism. And Blackshaw v. Lord predates the Derbyshire case [1993] AC 534.
The Court of Appeal observed “We question whether in practice this [the circumstantial test] is a test very different from the test of reasonableness upheld in Australia.” This is a reference to the decision of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The Lange decision was substantially influenced by a New South Wales statute which imposed a standard of reasonable care on publishers: see Michael Tilbury, “Uniformity, The Constitution and Australian Defamation Law at the Turn of the Century,” in Torts Tomorrow: A tribute to John Fleming, ed. Mullany and Linden, (1998), p. 244 for a perceptive analysis of the distinctive Australian context. In reply counsel for the newspaper put forward the Lange solution, with the legal burden on the plaintiff, as an alternative solution. In my view such a development would involve a radical re-writing of our law of defamation. Contrary to the submissions of counsel I also do not think it is a satisfactory way of redressing the imbalance between freedom of speech and defamation in England. I would reject this argument.
For the newspaper counsel argued that the particular requirements of the circumstantial test stated by the Court of Appeal are unduly restrictive. There is force in this argument. I will return to it. Counsel for Mr. Reynolds pointed out in his case:
“It is conceptually difficult to reconcile on conventional principle a finding that there is a duty to publish and a reciprocal interest with a conclusion that there is nonetheless no privilege. Some unease with this approach may be seen in the Court of Appeal’s qualified conclusion that in the instant case “the duty and interest tests were, in general, satisfied . . .” (at p. 911E)
He submitted that there is a structural flaw in the circumstantial test. He invited your Lordships not to adopt it. I would not accept the circumstantial test is soundly based. Having reached this point I would not wish to be taken to reject entirely the reasoning of the Court of Appeal. It will be recalled that the Court of Appeal had observed (at 910 B-C):
“While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our viewbe taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice.” (Emphasis supplied)
After all, this is the core of the reasoning of the Court of Appeal.
I would however rule that the circumstantial test should not be adopted.
Issue (3): The alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I have done, the only sensible course is to go back to the traditional twofold test of duty and interest. These tests are flexible enough to embrace, depending on the occasion and the particular circumstances, a qualified privilege in respect of political speech published at large.
The critical question is then to decide what requirements should be imposed in respect of qualified privilege in the context of political speech. In my view the passages in the Court of Appeal judgment which I have cited should not be elevated to legal requirements. Those passages, with a distinction drawn between official and “unofficial sources,” and between “a government press release” and “the statement by a political opponent,” could create the impression that if information is not obtained from a prima facie authoritative source, a privileged occasion does not arise. A rule, principle or approach that in considering a plea of qualified privilege of political speech greater weight should be given to what is said on behalf of the government than what is said on behalf of the opposition, other political parties or pressure groups is unacceptable in our democracy. And I am confident that the Court of Appeal did not intend to make such a ruling.
Counsel for Mr. Reynolds did not invite your Lordship to endorse the observations of the Court of Appeal. Instead he submitted that in the context of political speech qualified privilege must always fulfil as part of the duty test three legal requirements: (1) that the occasion must be one in respect of which it can fairly be said that it is in the public interest that the information should be published; and (2) that a report which “failed to report the other side” would always fail the test; (3) that there is a burden on a publisher of a report to prove that there is a cogent reason why it should be excused in the particular circumstances from justifying the truth of the assertion.
My Lords, the first proposition involves nothing radical or extravagant. It builds on the web of existing law. I am content to accept that it should be the governing principle. The second proposition put forward by counsel as an independent legal requirement is implausible. A failure to report the other side will often be evidence tending to show that the occasion ought not to be protected by qualified privilege. But it would not necessarily always be so, e.g. when the victim’s explanation is unintelligible or plain nonsense. This was recognised in the Australian Lange case: 189 C.L.R. 520, 574. The suggested strict requirement runs counter both to the pragmatic approach of the common law and a test dependent on particular circumstances. The third proposition overlaps with the first requirement. But as expressed it would emasculate the qualified privilege of political speech. I would reject it.
Returning now to the requirement that the occasion must be one in respect of which it can fairly be said to be in the public interest that the information about political matters should be published, I would accept that it may be objected that this requirement is imprecise. But this is a corner of the law which could do with the minimum of legal rules. And what is in the public interest is a well-known and serviceable concept. It will, of course, have to be given practical content. Inevitably the question will arise in concrete cases whether the newspaper was entitled to rely on the information it had obtained before publishing. This issue can be accommodated within the test of an occasion in the public interest warranting publication. In my view such an approach complies with the requirement of legal certainty. And in practice the issue will have to be determined on the whole of the evidence. If a newspaper stands on the rule protecting its sources, it may run the risk of what the judge and jury will make of the gap in the evidence.
The context in which the qualified privilege of free speech should be applied is all important. It was said by counsel for the newspaper that the English courts have not yet recognised that the press has a general duty to inform the public of political matters and that the public has a right to be so informed. If there is any doubt on the point this is the occasion for the House to settle the matter. It is an open space in the law which can be filled by the courts. It is true that in our system the media have no specially privileged position not shared by individual citizens. On the other hand, it is necessary to recognise the “vital public watchdog role of the press” as a practical matter: see Goodwin v. The United Kingdom (1996) 22 EHRR 123, 143, para. 39. The role of the press, and its duty, was well described by the European Court of Human Rights in Castells v. Spain (1992) 14 EHRR 445, 476, para. 43 in the following terms:
“. . . the pre-eminent role of the press in a state governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest.
“Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.”
In De Haes Gijsels v. Belgium (1997) 25 E.H.R.R. 1 the European Court of Human Rights again emphasised that the press plays an essential role in a democratic society. The court trenchantly observed (at p. 53; para. 39):
“It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.”
This principle must be the foundation of our law on qualified privilege of political speech.
The correct approach to the line between permissible and impermissible political speech was indicated by the European Court of Human Rights in Lingens v. Austria (1986) 8 E.H.R. 407, as follows (at 419, para. 42):
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt article 10(2) enables the reputation of others–that is to say, of all individuals–to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”
Implicit in that dictum is the distinction that speech about political matters has a higher value than speech about private lives of politicians. The dictum in the Lingens case was reinforced by the European Court of Human Rights in Oberschlick v. Austria (1991) 19 E.H.R.R. 389, 422, para. 59. Moreover, it will always be necessary to take into account the dynamics of the role of the press and that “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest”: The Sunday Times v. United Kingdom No. 2 (1991) 14 E.H.R.R. 229, 242 (para. 51). If the matter is approached in this liberal way the balance in our law between freedom of information and the right to reputation should fulfil the Convention requirement of being necessary in a democracy.
In the result I would uphold qualified privilege of political speech, based on a weighing of the particular circumstances of the case.
Issue (4): The function of the judge and jury
My Lords, the American Law Institute, Restatement of the Law, Torts, 2d, (1977) summarises in paragraph 619 the function of judge and jury in the following terms in regard to privilege:
“(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege. “(2) Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege.”
The commentary on subsection (1) reads as follows:
“Whether a privilege exists at all is a question for the court. This requires the court to determine whether the circumstances under which the publication was made were such as, . . . to make the publication privileged. This is true whether the issue involves the existence of an absolute privilege or of a conditional privilege. If the facts are in dispute, the jury is called upon to consider the evidence and pass upon the issues thus raised. It is for the court, however, to decide whether the facts found by the jury made the publication privileged or to instruct the jury as to what facts they must find in order to hold the publication privileged.”
For the sake of completeness the commentary on subsection (2) is as follows:
“The question whether the defendant acted for an improper purpose or in an improper manner is material if the publication is conditionally privileged . . . Under these circumstances, the qualified protection thus created is lost if the defendant has utilized the privilege for a purpose other than that for which the privilege was created, or if he otherwise abused the privilege. . . . These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn.
For my part these principles admirably and accurately state the English law and practice on the topic of qualified privilege: see Hebditch v. MacIlwaine [1894] 2 Q.B. 54, 58; Adam v. Ward [1917] A.C. 309, 318; Minter v. Priest 1930 A.C. 558, 571-572; Kingshott v. Associated Kent Newspapers [1991] 1 Q.B. 88, 101A-C. I would apply it to the qualified privilege of political speech.
The particular qualified privilege which I have held to exist may or may not involve issues of primary or secondary fact which are for the jury. But the judge may withdraw the issue from the jury if only one conclusion can be drawn and, in any event, in the light of the jury’s findings of fact it is for the judge to decide whether the occasion was privileged.
Issue 5: The decision of the Court of Appeal
The question arises how the appeal should be resolved.
The Court of Appeal enunciated a test of qualified privilege, which marked a new development of the law. As a result of the speeches in the House today a different approach has been adopted. In this very difficult case nobody could at the time of trail realistically have foreseen this outcome. Given that a retrial, involving a different judge and jury has been ordered, I regard it as fair that the issue of qualified privilege should be before the judge and jury to be considered in accordance with the speeches delivered today. In any event, on the basis of a transcript of evidence not placed before the Court of Appeal, it is now clear that the Court of Appeal’s assumption “that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying” was wrong: at p. 911F. Furthermore, the finding that “Mr Spring did not in terms accuse Mr. Reynolds of lying to the Dáil” is arguably contrary to the findings of the jury and, in any event, debatable. Indeed counsel for Mr. Reynolds described it as a complex issue. Moreover, the issue of justification will have to be reconsidered at the retrial and the evidence on it may overlap with the evidence on qualified privilege. It is fair that both the issues of justification and qualified privilege should be considered by the judge and jury.
The only escape from this outcome is to say that a failure to publish the explanation given by Mr. Reynolds in the Dáil precludes the newspaper as a matter of law from relying on the qualified privilege of political speech. My Lords, I have already explained why I would not put the law in such a rigid straight jacket. And my understanding is that there is no support for such a rule in the speeches delivered today.
For these reasons I would hold that the Court of Appeal’s ruling (at p. 912A) that “this was not a publication which should in the public interest be protected by privilege in the absence of malice” should not be upheld. Issue 6: The disposal of the appeal.
I would allow the appeal and remit the issue of qualified privilege to be considered at the retrial.
LORD COOKE OF THORNDON
My Lords,
I am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.
The article sued on is a mixture of allegations of fact, comment and reporting. The chief defence at the trial was justification: that is to say, truth. The sting of the article was that Mr. Reynolds had lied to and deceived by non-disclosure the Dáil and his colleague in government, Mr. Spring. An impugning of what was said in the Dáil was thus at the heart of the case, but it became common ground in the argument of this appeal that the plaintiff was entitled to waive and had waived parliamentary privilege. It would seem that implied waiver may likewise explain Adam v. Ward [1917] A.C. 309; contrast Prebble v. Television New Zealand Ltd. [1995] 1 AC 321.
The defence of justification in the present case was disposed of by the jury’s finding that the allegation complained of was not true in substance–a finding reached notwithstanding certain misdirections which the Court of Appeal held to have had the effect of denying the plaintiff a fair trial. The part of the Court of Appeal’s judgment concerning misdirections has not been challenged on the appeal to your Lordships. At first sight it seems odd that the jury awarded no damages. Lord Lester of Herne Hill Q.C. for the appellants suggested during the argument before the Appellate Committee that the jury’s reason for no award was that in evidence before them there were some Irish newspapers containing similar material, on which the plaintiff had not sued in Ireland. That may explain the apparent inconsistency in the verdict, but has little if any bearing on the issue of qualified privilege which your Lordships have to determine.
Other defences pleaded had been fair comment on a matter of public interest, and a fair and accurate report of proceedings in public of the Irish legislature (Defamation Act 1952, section 7 and Schedule, paragraphs 1 and 14; cf. Defamation Act 1996, section 15 and First Schedule, paragraph 1). But both these defences were abandoned at the outset of the trial. Fair (that is to say, honest) comment would have failed because, as the jury in effect found, the basic facts were not truly stated. To the extent that the article was a fair and accurate report of proceedings in the Dáil, it would have been protected by statutory qualified privilege; but it was not a fair and accurate report, as it omitted the explanation given to the Dáil by Mr. Reynolds. In any event the reporting of the proceedings in the Dáil was mixed up with other allegations, including lying, which the newspaper appeared to adopt as its own or to accept; and these would have been outside the statutory reporting privilege.
In that situation the defence could not succeed unless the case could be brought within the protection of the subsisting principles of common law regarding qualified privilege (which are not limited or abridged by the statutory privileges: see section 7(4) of the Act of 1952 and cf. section 15(4) of the Act of 1996); or unless the court could be persuaded to introduce into English law a new generic head of qualified privilege for political discussion, on lines similar, for instance, to that proposed for New Zealand by the New Zealand courts in Lange v. Atkinson [1997] 2 N.Z.L.R. 22; [1998] 3 N.Z.L.R. 424, contemporaneously under appeal to the Privy Council. The less-sweeping new generic head established by the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 might be an alternative approach.
In Reynolds the defence preferred to take the high ground. As in the courts below, counsel for the appellants to your Lordships concentrated on arguing for a new generic privilege for political discussion, limited merely by the possibility of the plaintiff’s proving malice. Only in the dying stages of Lord Lester’s reply was a less radical new generic privilege put forward as an alternative. This would have some similarity to the solution evolved for Australia in Lange v. Australian Broadcasting Corporation, with a major difference as to onus. The fallback position of the present appellants would involve placing on the plaintiff the burden of proving unreasonable conduct or lack of reasonable care on the part of the defendant, whereas the Australian solution requires the defendant to establish reasonableness.
Arguments invoking freedom of speech in a democracy have ready moral, intellectual and emotional appeal, and in this instance their presentation by Lord Lester and Mr. James Price Q.C. lacked nothing in potency. Some famous observations were cited. Your Lordships’ Committee were reminded that it was eloquently said by Judge Learned Hand in United States v. Associated Press 52 F. Supp. 362, 372 (1943) that the First Amendment ” . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” In like vein was the pronouncement of Holmes J., dissenting but with the concurrence of Brandeis J., in Abrams v. United States 250 U.S. 616, 630 (1919) ” . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . “
Such observations are most naturally apposite, however, to freedom to express ideas and convey news. Neither of the cases in which they were made was a defamation case. It would be dangerous to stretch them out of context. As to defamatory allegations of fact, even in the United States the opinions of jurists differ on the extent to which the collectively cherished right of free speech is to be preferred to the individually cherished right to personal reputation; and it is certain that neither in the United Kingdom nor anywhere else in the Commonwealth could it be maintained that the people have knowingly staked their all on unfettered freedom to publish falsehoods of fact about political matters, provided only that the writer or speaker is not actuated by malice. It would be a mistake to assume that commitment to the cause of human rights must lead to a major abandonment of established common law limitations on political allegations of fact. See, for instance, the Francis Mann lecture by Sir Sydney Kentridge Q.C. (as he now is) Freedom of Speech: Is it the Primary Right?, published in (1996) 45 I.C.L.Q. 253, wherein Sir Sydney argues against introducing a New York Times Co. v. Sullivan-type defence for political discussion (see 376 U.S. 254). “It should not be beyond a court’s ability,” he says at page 268, “to distinguish in any particular case between hard-hitting political criticism and truly libellous allegations of fact.” I would follow that approach.
As I understand it, none of your Lordships who sat in this case and in the New Zealand Lange case favours any new form of generic privilege for political discussion; and I am of the same mind for the following main reasons:
(i) Although investigative reporting can be of public benefit, the commercial motivation of the press and other sections of the media can create a temptation, not always resisted, to exaggerate, distort or otherwise unfairly represent alleged facts in order to excite the interest of readers, viewers or listeners. This very case may conceivably be an illustration. On the same date, 20 November 1994, as that of the British mainland edition of the ‘Sunday Times’ containing the article sued on, the Irish edition of the same paper carried a much longer article on the same subject. It presented Mr. Reynolds as a victim of circumstances, which it traced in much detail, and its tone is markedly less dramatic and more objective. As the Court of Appeal records, Mr. Reynolds accepts the article in the Irish edition as being very largely accurate and on the whole unobjectionable. It is common ground that those responsible for the British mainland edition knew what was to be published in the Irish edition. A possible inference, albeit supported by no direct evidence, is that it may have been felt that as full, factually detailed and balanced an account would not have the same appeal for British mainland readers. Be that as it may, there is in my opinion no good reason why politicians should be subjected to a greater risk than other leading citizens, or for that matter any other persons, of false allegations of fact in the media.
(ii) In the United Kingdom a succession of well-qualified committees on the reform of defamation law have rejected anything approaching the generic privilege for which the appellants primarily contend. They have specifically rejected for the United Kingdom a Sullivan approach. Counsel for the present appellants disclaimed seeking to go as far as that case. Still, they adopted as part of their argument certain letters from a leading New York libel attorney, which they tendered during the hearing of this appeal, including an assessment that in the United States public officials and public figures not only have a genuine opportunity to meet the Sullivan test but often do so by succeeding in actual litigation.
What is being proposed for the appellants is, or is at least close to, Sullivan in a limited sphere (politicians but not at this stage other public figures) but without any assurance that, on the issue of malice, the plaintiff will have access to the defendant’s sources. As I understand it, plaintiffs do commonly have such access in the United States. In the United Kingdom the common law and practice regarding protection of media sources has been strengthened by section 10 of the Contempt of Court Act 1981, prohibiting any court from requiring disclosure of a journalistic source unless satisfied that disclosure is necessary in (inter alia) the interests of justice. A contemporary textbook, Carter-Ruck on Libel and Slander 5th ed. (1997), pp. 105-107, refers to the difficulty of predicting when disclosure will be ordered, citing X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1991] 1 A.C. 1 and Goodwin v. United Kingdom 22 EHRR 123. See also Maxwell v. Pressdram Ltd. [1987] 1 W.L.R. 298 for a vivid illustration of this uncertainty in the defamation field.
(iii) There are further reasons why the exception of malice is a dubious safeguard. Few persons contemplating bringing a defamation suit would derive much confidence from advice that, if the case were skilfully handled, their lawyers might succeed in proving malice. The defendant is entitled to a direction that, while recklessness as to whether the facts are true or not amounts to malice, mere carelessness, impulsiveness, vehemence of language, and even gross and unreasoning prejudice, do not: see Horrocks v. Lowe [1975] A.C. 135, 145 to 146 and 150, per Viscount Dilhorne and Lord Diplock respectively. So too, although much was made for the present appellants of the ability of a jury to find malice if a defendant newspaper elects not to reveal its sources, the defendant will normally be entitled to a direction that in itself unwillingness to reveal confidential sources is not evidence of malice. The burden of proving malice is a heavy one and it may be extremely difficult to establish: Spring v. Guardian Assurance Plc. [1995] 2 AC 296, 329 per Lord Slynn of Hadley, 346 per Lord Woolf.
(iv) It is doubtful whether the suggested new defence could sensibly be confined to political discussion. There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and freedom of speech has been carefully and gradually developed over the years by common law and statutes. It is true that the restrictions on freedom of speech that have been thought necessary to give reasonable protection to personal reputation may have a tendency to chill the publication, not only of untruths, but also of that which may be true but cannot be proved to be true. But there is nothing new in this. Nor, as far as I am aware, is there any way of assessing which tendency is the greater–although experience of libel litigation is apt to generate a suspicion that it is the former. A new generic qualified privilege of the width primarily urged for the appellants would do violence to the present pattern of the law without any compelling evidence of necessity. As regards discussion of government and political matters, the defences of justification, fair comment and privilege for fair and accurate reports of certain proceedings would all, at one stroke, be rendered virtually obsolete. No longer would the defendant have to prove the truth of any defamatory allegations or substratum of fact. No longer would any report have to be fair and accurate. The sole safeguard would be the possibility of the plaintiff’s proving malice, as to the adequacy of which I have already expressed misgivings. Of course a trial judge may point out that the truth of an allegation has not been pleaded or proved, but such niceties can be buried beneath the general impression conveyed to the public of who has won or lost the case.
(vi) The foregoing considerations do not exert the same force against the solution evolved in the Australian Lange case 189 C.L.R. 520. Reconciling the differences of opinion in Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104 and Stephens v. West Australian Newspapers Ltd. (1994) 182 C.L.R. 211 and in some respects modifying the view of the majority in those cases, the High Court in Lange settled on a new common law privilege for communications to the general public on government or political matters, conditioned by a defence onus of proving reasonableness of publication. New South Wales statute law was held to be consistent with this solution. The federal Constitution, providing for representative and responsible government, was now seen, not as a direct source of the privilege, but as a restriction on legislative power and a background or context helping to demonstrate a need to develop the common law of Australia. As I see it, however, the United Kingdom is no less a representative democracy with responsible government than Australia. The same can be said of other comparable jurisdictions, including New Zealand. For the purposes of defamation law, the background or context does not seem materially different. The constitutional structures vary, but the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies.
But the Australian solution is not supported by either side in the present litigation (the fallback position of the appellants differing as to onus), and I share the view that your Lordships should not impose it without at least some difference of emphasis. The whole purpose of defamation law is to enable a plaintiff to clear his or her name. The privilege required for reasonable freedom of speech does run counter to that purpose in some cases. A major expansion of the privilege, such as may have been achieved in Australia, shifts the focus of political defamation to the conduct of the defendant. In practice it may leave a politician plaintiff without redress. His or her private life may be immune from the extended privilege, but otherwise the opportunity of a public clearing of name may be virtually gone. If the Australian solution has disadvantages, they may lie in this change of focus and in the singling out of politicians as acceptable targets of falsehood.
Further, it is hard not to see something a little incongruous or awkward about the proposition stated in the Australian Lange case:
“Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege” (189 C.L.R. 520, 573).
This appears to set an Australian judge the task of determining what would have been the common law of England on the case at hand, at some unspecified date, before the judge can decide whether to disapply that law. If workable in Australia, it could hardly be appropriate in England.
(vii) In the judgment now under appeal the Court of Appeal described the New Zealand Lange case as the sheet anchor of Lord Lester’s arguments [1998] 3 W.L.R. 862, 906D. In that case the New Zealand courts struck out on a new line in deciding not to apply the decision of the New Zealand Court of Appeal in Templeton v. Jones [1984] 1 N.Z.L.R. 448. That decision was not in proceedings against a newspaper or a broadcasting station but, even so, the approach in the New Zealand Lange case is different.
The parties in Templeton v. Jones were rival candidates for a parliamentary seat at a general election. The defendant had made to the annual general meeting of the electorate branch of his political party a speech in which he said (inter alia), apparently as a statement of fact, that the plaintiff despised Jews. Copies of his speech were distributed by the defendant to the parliamentary press gallery. As a result the allegation in the speech was broadcast in a national television news programme. The action was brought on that publication, for which it was not denied that the defendant was responsible. On an appeal from a pre-trial ruling the Court of Appeal held that there was neither any general privilege protecting publication of political matter to the public at large, nor in the particular circumstances any privilege protecting the publication of this allegation by the defendant.
On the question of general privilege, the authorities cited specifically in the judgment were from several jurisdictions. From England Duncombe v. Daniell (1837) 8 C. & P. 222; Braddock v. Bevins [1948] 1 K.B. 580; Plummer v. Charman [1962] 1 W.L.R. 1469, 1474, per Diplock L.J.; and Blackshaw v. Lord [1984] Q.B. 1. From Australia Lang v.Willis (1934) 52 C.L.R. 637, 667, per Dixon J. From Canada Douglas v. Tucker [1952] 1 D.L.R. 657; Globe and Mail Ltd. v. Boland (1960) 22 D.L.R. (2d) 277; Jones v.Bennett (1968) 2 D.L.R. (3d) 291; and Lawson v. Chabot (1974) 48 D.L.R. (3d) 556. From New Zealand Bradney v. Virtue (1909) 28 N.Z.L.R. 828, 839, per Edwards J.; Truth (N.Z.) Ltd. v. Holloway [1960] N.Z.L.R. 69; Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. [1971] N.Z.L.R. 961; and Brooks v. Muldoon [1973] 1 N.Z.L.R. 1. In the light of these authorities, and notwithstanding New York Times Co. v. Sullivan 376 U.S. 254, the New Zealand Court of Appeal in Templeton v. Jones declined to introduce in New Zealand a new generic privilege.
My Lords, with the benefit of the arguments in the present appeal and in the appeal to the Privy Council in the New Zealand Lange case, I have returned to the authorities on which Templeton v. Jones was founded. As the authorities stood in 1984, I continue to regard the decision in Templeton v. Jones as inevitable. It is as well to add that in Horrocks v.Lowe Lord Diplock remarked (see [1975] A.C. 135, 152) that qualified privilege does cover what local councillors say at meetings of the council or its committees; but that appears to be an exception to and not to undermine his broader proposition in Plummer v. Charman [1962] 1 W.L.R. 1469, 1474:
“I need hardly say that there is no privilege known to the law which entitles persons engaged in politics to misstate a fact about their opponent provided that they say it honestly even though untruthfully. They can comment upon the conduct of persons in public life, provided they do so honestly and without malice.”
It is also true that, (unlike earlier authorities and the New Zealand Lange case and the present case) Templeton v. Jones related to a television programme. The power of the media and the facility of communicating with the general public have certainly been much increased by television. It seems to me, however, that this is far from a ground for extending the heads of privilege. On the contrary, if anything it adds to the importance of principles aimed at ensuring journalistic responsibility.
But the common law nowhere stands still. In this field of much international debate, I think that it was open to the New Zealand Court of Appeal in the Lange case to reconsider Templeton v. Jones. Indeed I would put it more strongly. In the light of the intervening line of cases across the Tasman–namely, the Theophanous, Stephens and Australian Lange cases–I would accept that reconsideration of Templeton v. Jones was either incumbent on the New Zealand courts or at least highly appropriate. It is the result, so far, of their reconsideration with which I respectfully disagree. In the Reynolds case Lord Bingham of Cornhill L.C.J. in giving the judgment of the English Court of Appeal has said that in the New Zealand Lange case ” . . . no or at least insufficient weight is given to the proper balance . . . ” (see [1998] 3 W.L.R. 862, 907H). For the reasons set out in my present speech, I agree with the Lord Chief Justice and his colleagues. At the same time, as a party to the Privy Council judgment in the New Zealand Lange case, I am equally clear that there is a high element of judicial policy in the resolution of the issue, and that the best course is to refer the New Zealand Lange case back to the New Zealand Court of Appeal to enable account to be taken of the Reynolds case. In other words, the possibility of a difference between English and New Zealand common law on the issue has to be accepted, albeit not advocated.
(viii) International human rights law, whenever relevant, should have an important part to play in developments of the common law. For United Kingdom courts, particular importance must attach to the European Convention for the Protection of Human Rights and Fundamental Freedoms, bearing in mind that by section 6(1) of the Human Rights Act 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3)(a) “public authority” here includes a court or tribunal. By section 2(1)(a) decisions of the European Court of Human Rights must be taken into account. The Convention rights here relevant are to be found in article 10.1 (which includes rights to freedom of expression, and to receive and impart information and ideas) and are subject to article 10.2 (which speaks of accompanying duties and responsibilities and authorises such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others). The Act is not yet in force, but naturally the appeal was argued on the footing that regard should be had to it.
The jurisprudence of the European Court of Human Rights has been reviewed by Lord Nicholls. I need say only that it reveals first an emphatic distinction between fact and opinion, secondly a careful examination of all the circumstances of a particular case before a decision is reached as to whether freedom of expression is to be treated as the dominant right. As the European case law stands at present, no trace is to be found of endorsement of a generic privilege in the political context. This is not surprising in view of the balance aimed at by article 10. I am afraid that the arguments for the appellants would tend, in effect, to divert your Lordships from the European path.
(ix) The Human Rights Act also has a special provision, original to the United Kingdom, pointing to the answer to the present problem. It is section 12:
“12.–(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. . . .
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –
(a) the extent to which –
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section –
court includes a tribunal; and
relief includes any remedy or order (other than in criminal proceedings).”
The omitted subsections contain restraints on ex parte and pre-trial relief, and the whole section is inspired by the purpose of ensuring a due measure of media freedom. What are significant in the present context are the references to journalistic material and especially to the extent to which it is, or would be, in the public interest for the material to be published. The focus appears to be on the particular material rather than the general subject matter. Of course the general subject matter is a factor to be considered, but I do not think that a court would discharge its responsibility under the section by going no further than satisfying itself that the material related to government or political matters. A more specific examination appears to be contemplated by Parliament. The common law of qualified privilege should evolve in harmony with that legislative approach.
Cumulatively the reasons under the foregoing heads lead me to the view that the Court of Appeal in the present case and an earlier Court of Appeal in Blackshaw v. Lord [1984] Q.B. 1 adopted substantially the right approach. The categories of qualified privilege are not closed. When a case cannot be brought within an established generic category, it may nevertheless call for a finding of privilege if in all the circumstances the classical tests of reciprocal interest and duty or common interest are satisfied. Although sometimes newspaper privilege has been put on the ground of common interest (see Perera v. Peiris [1949] AC 1, 22), the weight of authority favours the former test and it has the advantage of underlining media responsibility. There are occasions when the media may rightly claim to have a social or moral duty to publish defamatory material to the world at large; but there is no room for any suggestion that the motive of increasing readership or audience is a sufficient interest, nor does it seem altogether realistic to treat the media as no more than citizens communicating with other citizens on matters of common interest. It was indeed the duty of the media on which in his sustained argument Lord Lester placed constant stress.
In the judgment now under appeal the circumstantial test was separated to some extent from the duty and interest tests. Not entirely, I think, for it was said that, while the duty and interest tests were “in general” satisfied, the circumstantial test was not. This may indicate that the Court of Appeal thought that the general subject matter of the article brought it potentially within qualified privilege but that the particular context and surrounding circumstances ruled the privilege out. The threefold analysis is largely a matter of arrangement. I agree that the twofold classical test is enough, once it is accepted that all the circumstances of the publication are to be taken into account. It is undeniable that a privilege depending on particular circumstances may produce more uncertainty and require more editorial discretion than a rule-of-thumb one. But in other professions and callings the law is content with the standard of reasonable care and skill in all the circumstances. The fourth estate should be as capable of operating within general standards.
A more formidable argument against the approach of the Court of Appeal is that it introduces at the stage when the existence of privilege is determined issues which are said to be relevant only to malice or abuse of the occasion. In the leading case of London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23, Lord Buckmaster L.C. said:
“Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection.”
Lord Lester pointed out that at the end of his speech (at p. 27) Lord Buckmaster L.C. indicated that whether the material published had been checked went only to malice. The argument is that failure to include the plaintiff’s account, or to give him an opportunity of contradicting the article to be published, are examples of matters which do not bear on the existence of privilege, but only on the loss of privilege.
The answer to that argument, in my opinion, is to be found in the nature of the publication. The Greenlands case was one of publication in confidence to a single potential customer. Many qualified privilege cases are concerned with very limited publications. Then, the occasion and the subject matter being identified, there is normally no reason to go further. When a publication to the world at large is in issue, however, the policy of the law is different. For reports, fairness and accuracy are essential at common law (Wason v. Walter (1868) L.R. 4 Q.B. 73), just as they invariably are for statutory reporting privileges (see now the Defamation Act 1996, section 15 and Schedule 1). Some of the latter also require compliance with requests to publish reasonable statements by way of explanation or contradiction.
Hitherto the only publications to the world at large to which English courts have been willing to extend qualified privilege at common law have been fair and accurate reports of certain proceedings or findings of legitimate interest to the general public. In Blackshaw v. Lord [1984] Q.B. 1, Templeton v. Jones [1984] 1 N.Z.L.R. 448, and now the present case, the law is being developed to meet the reasonable demands of freedom of speech in a modern democracy, by recognising that there may be a wider privilege dependent on the particular circumstances. For this purpose I think it reasonable that all the circumstances of the case at hand, including the precautions taken by the defendant to ensure accuracy of fact, should be open to scrutiny. Lord Nicholls has listed, non-exhaustively, matters to be taken into account. As the Court of Appeal suggested, this brings English law into a position probably not very different from that produced by the Australian reasonableness test, but perhaps rather more consonant with common law tradition. Onus becomes unimportant, except in the sense that evidence of the circumstances surrounding the publication is necessary. The contents of the publication in those circumstances become all-important.
The established common law rule, for which Adam v. Ward [1917] A.C. 309 is the leading authority, is that disputed questions of fact relevant to an issue of qualified privilege are for the jury, but otherwise it is for the judge to determine whether the privilege applies: see Gatley on Libel and Slander, 9th ed. (1998), para. 34.15. The editors of that work evidently regard this common law rule as unaffected by Kingshott v. Associated Kent Newspapers Ltd. [1991] 1 Q.B. 88, which they deal with elsewhere therein, particularly in para. 15.5, note 43. In this I think they are right. The Kingshott case held that Adam v. Ward had not overruled earlier decisions on what is now section 15(3) of the Defamation Act 1996, a provision excluding statutory reporting privilege if matter published to the public, or a section of the public, “is not of public concern and the publication . . . is not for the public benefit.” Distinguishing Adam v. Ward as not concerned with the statutory privilege, the Court of Appeal in Kingshott held that under the statute public concern and public benefit were matters for the jury. The principal judgment was given by Bingham L.J., as he then was, and it may be significant that in his Reynolds judgment on common law privilege he makes no mention of the Kingshott case.
At common law any value judgment required in determining whether a publication is privileged has been widely understood, in England and I believe elsewhere in the Commonwealth, as falling to the judge. I would be loath to entrench upon that understanding. Defamation cases are already difficult enough for juries, and the drastic judicial surgery that has had to be undertaken to curb extravagant awards of damages (see John v. MGN Ltd. [1997] QB 586) suggests that it may now be over-romantic to conceive of juries as champions of freedom of speech as in the days of Penn and Mead’s case (1670) 6 St.Tr. 951 and Bushell’s case (1670) 6 St.Tr. 999.
As for the application of the principles to the circumstances of the present case, I cannot do better than reproduce the Court of Appeal’s words reported in [1998] 3 W.L.R. 862, 911-912-
“As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr. Spring’s stated reasons for withdrawing from the government. This question was answered in the defendants’ favour, and is not the subject matter of the plaintiff’s appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.
The circumstances in which Mr. Reynolds’s government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied.
(1) The allegation that Mr. Reynolds had lied was attributed in the article to an unidentified colleague of Mr. Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr. Finlay, who was not a deputy but was described in the Dáil as ‘Mr. Spring’s programme manager.’ There was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying, and Mr. Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr. Reynolds’s leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation. (2) Mr. Spring did not in terms accuse Mr. Reynolds of lying to the Dáil. He did, in his speech on Wednesday, 16 November, strongly criticise Mr. Reynolds for failing to disclose what he had known on Tuesday, 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr. Reynolds’s part. (3) The defendants wholly failed to record Mr. Reynolds’s own account of his conduct, as described by him when addressing the Dáil in the Wednesday debate. (4) The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr. Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dáil so as to obtain his observations on it. (5) The defendants failed to resolve whether Mr. Reynolds was a victim of circumstance, as conveyed to Irish readers in the ‘House of Cards’ article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.
Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.”
Subject to the refinement that the circumstantial test should not be treated as something apart from the duty-interest test, I would be content to adopt all of that. Variousexplanations were offered for the appellants, but they do not shake the essential accuracy of what the Court of Appeal said. It does seem to me to be correct that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying. There was some evidence to the effect that one might naturally assume from Mr. Finlay’s association with Mr. Spring that he spoke with the latter’s authority; but that is a different point and does not in my view affect the balance of the case as to qualified privilege. If their primary argument for generic privilege fails, the appellants seek to have the issue of qualified privilege determined at a new trial and on possibly different evidence. My Lords, I cannot think that this would be just. They had every opportunity at the trial of calling such evidence as they saw fit. In the light especially of Blackshaw v. Lord [1984] Q.B. 1, it was readily foreseeable that any privilege might be held to depend on the particular circumstances; and the pleadings and arguments for the defendants were wide enough to cover this possibility, although it was not the outcome for which they primarily contended. The new trial has not been ordered because of any defect in the trial having anything to do with the ruling against qualified privilege. On that issue the defendants have had their day in court–indeed many days in three courts–and, if a new trial does take place, it should be, as I see the justice of the case, on the basis that the article is not eligible for privilege. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
Among the issues which are raised by this case are two important questions which relate to the structure of the law of defamation in its application to qualified privilege.
The first question is whether discussion of matters relating to the public conduct of those elected to positions of responsibility in government (referred to as “political discussion” by Lord Lester of Herne Hill Q.C. in the course of his argument) should be accorded the benefit of a generic common law qualified privilege. If that were so, all defamatory statements of fact made in the course of such discussion would be protected by the privilege. And the benefit of the defence would extend not only to the newspapers but to all sections of the media. The result would be that all statements of fact falling within the scope of this category would be presumed to have been made without malice. The burden of proving malice would rest in all such cases on the person who claimed that the statement was defamatory.
The second question assumes that the availability of the defence will continue to depend upon the facts of each case. It relates to the tests which must be applied in order to decide whether, in the particular circumstances, the occasion on which the statement was made was one which entitled the maker of it to the protection of the qualified privilege. Giving the judgment of the Court of Appeal, Lord Bingham of Cornhill C.J. said that three tests required to be satisfied: the duty test, the interest test and the circumstantial test: [1998] 3 W.L.R. 862, 899D-G. At the end of the judgment, at p. 911E, he said that the duty and interest tests were, in general, satisfied in this case but that the court could not regard the circumstantial test as satisfied. In the last paragraph of the judgment, at p. 912A, he said:
“Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.”
The question is whether, in its formulation of the circumstantial test, the court went further than it ought to have done in defining the circumstances of the occasion by introducing into that test matters of fact which might be thought to be relevant to the issue of malice – indicating abuse of the occasion – rather than to the question whether the occasion itself was privileged.
The generic privilege
The occasion for which the appellants seek to be accorded the benefit of a generic qualified privilege was the publication in an edition of the “Sunday Times” newspaper circulating in the United Kingdom of an article relating to the resignation of Mr. Albert Reynolds, who had just resigned as Taoiseach in the Irish government, and the collapse of his coalition government. Mr. Reynolds claims that passages in that article meant and were understood to mean that he had deliberately and dishonestly lied to the Dáil by suppressing information which he possessed about the suitability for promotion of the Irish Attorney-General whose appointment to the Presidency of the High Court of Ireland he was promoting, and that he deliberately and dishonestly misled his coalition cabinet colleagues by withholding that information from them and lying about when the information came into his possession.
The generic privilege for which the appellants contend was formulated in various ways by Lord Lester. But in essence his submission was that it should extend to any discussion of a governmental or political matter affecting the people of the United Kingdom. He made it clear that the privilege for which he contended was intended to apply only in respect of criticism of political conduct and not to private conduct. The theme which he stressed throughout was that the justification for the generic privilege was that it was necessary in a modern democratic society, in view of the strong public interest in free speech in general and in freedom of expression on political issues on the press and other sections of the media in particular.
An examination of this issue must start from familiar first principles. The foundation of an action of defamation is malice. If words are used which are defamatory and untrue the law implies malice. That presumption is rebutted if the occasion when the words were used is privileged. The privilege destroys the presumption. But it remains open to the claimant to prove that there was malice in fact. At the heart of the matter is the question whether “the occasion” is privileged. This occurs where the person who makes the communication has an interest or duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v. Ward [1917] A.C. 309, 334, per Lord Atkinson. The interest or duty may be a legal or moral duty or it may arise from social circumstances. But it is essential that there should be a reciprocity of duty and interest as to the matter which is being communicated. As Lord Atkinson pointed out, the communication is often loosely described as privileged. But strictly speaking it is the occasion itself which is privileged.
It is important not to lose sight of this point as we examine the issues raised by this case. It is essential to a proper understanding of the structure of this branch of the law. The privilege is given not to communications nor to the people who communicate them, but to the occasion. No individual or organisation, such as a newspaper or any other section of the media, can assert that it is entitled to the benefit of qualified privilege simply because of who or what that individual or organisation is or what it does. It is the occasion of the communication which must be examined, to see whether there was an interest or duty to make it and a corresponding interest or duty to receive it, having regard to its particular subject matter.
The application of these principles to particular facts and circumstances may show that there are some occasions of qualified privilege which can be regarded as falling into a recognisable group or category. Cases of that kind may be regarded as attracting what has been described as a generic common law qualified privilege. All occasions falling within that group or category will be treated as occasions of qualified privilege, and proof of actual malice will always be required before the words used can be held to be defamatory. This assists free speech and full and frank disclosure of the facts. It removes the inhibiting, or “chilling,” effect which the law of defamation imposes on the discussion of matters of public interest. As a general rule it is beneficial and in the public interest that communication between parties with the necessary reciprocal duty and interest in the matter should not be inhibited.
But there is another general rule. The circumstances in which the common law defence of qualified privilege will be applied have always been defined broadly. In Perera v. Peiris [1948] AC 1, 20 Lord Uthwatt, giving the judgment of the Privy Council, said that their Lordships preferred to relate their conclusions to the wider general principle which underlies the defence of privilege in all its aspects rather than to debate the question whether the case fell within some specific category. This approach recognises the fact that the question is ultimately one as to striking the right balance between competing interests. In order to achieve this the primary concern of the law must be to maintain its flexibility. The advantages of certainty, which is the product of recognising that cases falling within a certain class or category will always attract qualified privilege, must be measured against the disadvantages which tend to flow from rigidity.
I think that three factors are relevant to the issue as to whether a generic qualified privilege can be recognised. The first relates to the precision with which the category can be described. The second relates to the persons to whom the material is to be communicated. The third relates to the issue of malice. As the only protection left against the damaging effect of communicating defamatory false statements is proof of malice which will remove the privilege, care should be taken not to give the benefit of the privilege too readily to persons or organisations whose sources of information are themselves protected to an extent which renders the issue of malice inscrutable.
If the category cannot be described precisely, it will be at risk of enlargement or erosion case by case and thus of losing touch with the underlying justification for the creation of the category. Where imprecision is unavoidable, the better course would seem to be to take each case on its own facts and circumstances. If the category is of a kind where the communication is made to a particular person or group of persons, and not to the public generally, it may be thought that the advantages of precision outweigh those which come with flexibility. The consequences to the person who is the subject of the communication are likely to be less serious than they would be if the defamatory statement of fact is published generally. But where the category involves communication to the public, the question must be whether the public interest in the receipt of the information will always outweigh the general public interest in protecting the reputation of the individual. This is a question which is particularly sensitive to changing circumstances, whether they be social or political, and to changes in the way in which information is presented or disseminated. As for the issue of malice, the less open the communicator is to scrutiny, the more important it is likely to be to retain the benefits of flexibility. Qualified privilege, in other words, should not be given to a category where the occasion of the communication is such that the privilege is at risk of becoming, in practice, absolute.
Against that background I regard the election cases as providing the most useful starting point for an examination of the authorities. This is a clearly recognisable group of cases, as to which the limits of the application of a generic qualified privilege can be readily identified. Lord Lester’s argument is that the temporal and geographical limits which have been laid down in these cases are out of date. He said that the law should now recognise that there is a point of principle in them which should be applied more generally. I think that there is much force in that argument. But is first necessary to examine the cases to see what that principle is, and whether the limits which have been set by these cases for the application of the qualified privilege are indeed too narrow and should now be modified.
In Duncombe v. Daniell (1837) 8 C. & P. 222, the defendant was a voter in a parliamentary election. He wrote two letters which were published in a newspaper, the “Morning Post,” which reflected upon the character of one of the candidates in his constituency. The plaintiff was awarded damages, whereupon the defendant applied for a new trial. One of the grounds for the application was that it was justifiable for an elector bona fide to communicate to the constituency any matter respecting a candidate which he believed to be true and believed to be material to the election. The application was refused. In the course of the argument Coleridge J., at p. 229, said that the defendant had to go further than that and show that the elector was entitled to publish it to all the world, as the publication was in a newspaper. Counsel for the defendant submitted that if no more was done than was necessary to make the matters known to the electors the publication was privileged, and that whether or not anything more was done was a question for the jury. Giving judgment Lord Denman C.J. said at p. 229:
“However large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate.”
The same point was raised in several Scottish cases towards the end of the nineteenth century. Two of these cases concerned statements made by individuals about the fitness for office of candidates who were seeking election at the time when the statements were published: Anderson v. Hunter (1891) 18 R. 467 and Bruce v. Leisk (1892) 19 R. 482. Two of them concerned anonymous letters, one about a candidate for election, the other about a public official, which were published in local newspapers: Brims v. Reid & Sons (1885) 12 R. 1016 and McKerchar v. Cameron (1892) 19 R. 383. It is worth mentioning these cases, as they contain some observations which are relevant to the issue which we have to decide.
In Anderson v. Hunter the pursuer was seeking election as a county councillor for a division of the county of where a parish had been divided into two electoral divisions for county council purposes. The defender lived in the same parish but he was an elector in the other division. He had made various statements to people in the parish that the pursuer was not fit to be elected as he would soon be bankrupt. His argument was that the statements were made in circumstances that were privileged, as he was a ratepayer in the parish and the pursuer was a candidate for the public post of county councillor on one of the divisions of that parish. It was rejected, simply on the ground that he was not a voter in the election with reference to which he was said to have made the statements complained of.
In Bruce v. Leisk the defender was an elector in the same ward of the burgh in which the pursuer was seeking election as a councillor, so the geographical problem which was the basis of the decision in Anderson v. Hunter did not arise. He was also a member of the ward committee appointed by the ratepayers to recommend suitable candidates for election. The Lord Ordinary, Lord Stormonth Darling, said, at p. 484 that even if the defender were only an elector, it seemed to him that the case was one of privilege and that the pursuer must prove malice. In his view it was contrary to public policy to deny electors latitude in discussing the qualifications of those who were standing for election. His decision was reclaimed to the Inner House, which upheld his decision that the action should be dismissed as the pursuer was not willing to aver malice. Lord President Robertson said, at p. 485; that it was clear case for connecting the language used with the fulfilment of a public duty, and that when electors are considering who shall be elected they are quite entitled to state to other people, similarly concerned, what they know, or believe they know, on the question whether or not the person should be elected. Lord Adam said at pp. 486-487:
“The question we have to consider is whether an elector has a right and privilege to state to other electors, or to another elector, what is germane to the election, and what he believes at the time to be true? If it is not already implied in the judgment in the case of [Anderson v. Hunter] that where a candidate is standing for an important public office, one of the disagreeable incidents of it which he has to face from the electors is such language as is here complained of, I have no difficulty in laying this down now. If it is alleged that the statement was made maliciously, then he will have an action, but not otherwise.”
Lord Kinnear was also of the opinion that the occasion was privileged, as it was clear from the pursuer’s own statement that the words of which he complained were uttered when the defender was engaged in the exercise of a public right, with a view to the performance of a public duty.
Non-disclosure of its sources by a newspaper was the issue in Brims v. Reid & Sons. In that a newspaper had published an anonymous letter concerning the fitness for office of the pursuer who was seeking re-election as a member of a town council and to the public office of Dean of Guild. The publisher refused to disclose the name of the writer of the letter which he had published in his newspaper. It was held that he could not plead privilege in action to the pursuer’s action of damages. Lord President Inglis gave his reasons, at p. 1020; in a passage from which is worth quoting at some length, as it covers a number of the issues raised in the present case in the course of the argument:
“It appears to me that, whatever might be the case if these statements had been made in an editorial article, about which I give no opinion, the fact that they were made in an anonymous letter is quite sufficient for the decision of this case. It is difficult to define the exact extent of the privilege of comment which the editor of a newspaper undoubtedly has to some extent upon the doings of public men; it is difficult to define what the class of public men is with reference to whose doings he enjoys that privilege, or what the kind of accusations that may be brought against the conduct of public men is; and yet again it is difficult to distinguish between the doings of a public man, as a public man, and as a private individual.
“But we are relieved of all these difficulties in the present case by the fact that the statements complained of are contained in an anonymous letter to the editor. The editor has declined to disclose the author. The effect of this in point of law is not to entitle this letter to be dealt with as if it had appeared in a leading article or in some part of the paper in which the editor speaks for himself. The law is that the editor accepts the position of the anonymous writer with every liability which could have been laid upon that writer if he had been disclosed. The question, then, is whether malice would require to be put in issue against the writer if he had been disclosed.
“Now, the answer to that question will depend upon who the writer was, and what his connection was with the matters on which he writes. But in the present case we cannot ascertain who the writer was, whether he was a ratepayer in Wick, whether he ever was in Wick in his life, or whether he is even a subject of Her Majesty. In short, we know nothing about him; he is a mere umbra. He is somebody who has libelled the pursuer, and is not in a position to justify that libel by proving its truth, or to justify it by saying that he has a privilege. . . .
“The newspaper editor can be in no better position then than the anonymous writer himself. Now, if the letter was written with malice, it is conceded that the pursuer is entitled to damages. But how can anyone prove malice on the part of a person of whom he knows nothing at all? What can he tell of his state of mind, or his relation to the matter on which he comments? Or how, on the other hand, can malice in such a case be disproved?”
Lord Shand made it clear, at p. 1021; that, if the question had arisen with reference to editorial comments in a leading article about the conduct of a public man seeking re-election to office on the eve of the election, he would have been in favour of the view that the occasion was privileged. But the writer of an anonymous letter could not be given the benefit of qualified privilege, and the editor of a newspaper could not, by adopting the letter, invest the writer with the privilege which might have attached to his own articles.
McKerchar v. Cameron was another case involving an anonymous letter published in a local newspaper. The letter contained statements indicating that the pursuer, who was a salaried official, was unfit for his post as a teacher in a public school. It was argued that the ratepayers and inhabitants of the neighbourhood had an interest and a right to know the contents of what was published, but the decision in Brims v. Reid & Sons was followed. It was held that there was no room for the defence of privilege, so there was no need for the pursuer to plead malice. The court did not need to decide whether a member of the public, in attacking any person holding any office under any public body, was entitled to the defence of privilege. But Lord McLaren observed; at p. 386; that it was difficult to see what duty or right there was on the part of a member of the public, as such, to criticise the conduct of a public servant who was in the public employment.
These cases indicate that the extent of the qualified privilege in relation to discussion of the public conduct of public officials, and especially of those who were seeking election to a public office or re-election, was already the subject of a vigorous debate one hundred years ago. Various strands of thought can be detected. It seems unlikely that the Scottish courts, by the end of the nineteenth century, would have taken the same line as was taken in Duncombe v. Daniell 8 C. & P. 222 where the privilege was held not to be available to an elector who published his statements under his own name in a newspaper. It seems to be implicit in the two Scottish cases which I have mentioned about the publication of anonymous letters by newspapers that the writers of those letters would have been able to argue that they were entitled to the defence of privilege if their names had been disclosed and they had been sued. The newspapers were small circulation, local newspapers. But at least it can be said that these cases were not decided on the narrow ground that publication in a newspaper was in itself enough to rule out the question of privilege.
As for the classes of persons by whom and about whose conduct comment might be made with the benefit of privilege, the criterion which was being applied was whether they were electors and candidates in the same electoral ward, district or constituency. But there are signs, particularly in the opinion of Lord President Inglis in Brims v. Reid & Sons, of a recognition that people in public positions generally, in regard to their conduct as such, were in a different position from private individuals. The Lord President referred to some of the difficulties in defining the class which have been raised in the present case. But he did not say that that was a fruitless exercise because comment of that kind could never attract the privilege.
I think that the geographical and temporal limitations which are apparent from the election cases provide a good illustration of the kind of situation which will attract a generic qualified privilege: cases falling within clearly defined limits, within which the elements of duty and interest in the publication of relevant matter will always be found. But that is not to say that there will not be other cases – of which the public conduct of public persons, especially those holding or aspiring to an elected political office, is the clearest example – where the privilege will be available. The difficulty as to these cases is one of definition, not one of principle.
Developments in regard to recognition of the fundamental right of free speech and to the nature of the electoral process since the end of the nineteenth century have reinforced the arguments in favour of the wider availability of the qualified privilege to those who publish material to the general public on matters of general public interest. There are powerful dicta to the effect that there is no inconsistency between article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the English common law on freedom of speech: see Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 283 per Lord Goff of Chieveley. But there can be no doubt that the incorporation of the Convention into English law by the Human Rights Act 1998 has strengthened the arguments in favour of the principles which are set out in that article.
In Braddock v. Bevins [1948] 1 K.B. 580 it was recognised that it was necessary for the welfare of society that there should be a frank exchange of information and opinions on matters relating to the exercise of the franchise by the electorate. Since that decision the width and subject matter of that exchange have been enlarged still further by a greater concentration upon the parties rather than on individuals in the electoral process. The growth of public opinion polls, both during election campaigns and between elections, has tended to shift attention towards the performance of the parties relative to each other throughout the entire calendar. The public conduct of leading politicians is now seen as the embodiment of a party’s performance and credibility. Recent developments in the method of electing candidates through party lists in the elections for the Welsh Assembly, the Scottish Parliament and the European Parliament have added to that development. These developments show that the case law which confined the privilege to comment on individual candidates at election time and to the electoral process within their own constituencies has become outdated. They support the argument, in a wider public interest, for the wider availability of the defence of qualified privilege.
But the question remains: should we now recognise a common law generic qualified privilege for political discussion? On balance I am of the opinion that this would not be satisfactory, bearing in mind the nature of the occasion and the use which would be likely to be made of it. It may be difficult to achieve a satisfactory definition of the category which will eliminate the risk of its being applied more widely to discussion about people in public life generally. A category which went that far was not asked for in this case, and I would regard it as unacceptable. But the greater risk is of defamatory statements of fact being communicated to a wide audience, based upon information communicated to the media by sources which those who publish the information must protect and consequently will not be revealed to the individual. The balance is a delicate one, as there are powerful arguments in favour of the constitutional right of free speech and, where politicians are involved, the interest and duty tests are likely to be satisfied in most cases without too much difficulty. But the importance which must be attached to the principle which justifies the protection of their sources by the media – which has an essential part to play in the role of the media in a free and democratic society – carries with it certain penalties.
One of these, I believe, is the discipline of having to justify each claim to the benefit of qualified privilege should the statements of fact which are made by the media turn out to be defamatory. The description of this discipline as having a “chilling” effect on free speech, as if this in itself shows that something is wrong with it, is too simple. Of course, it does “chill” or inhibit the freedom of the communicator. But there are situations in which this is a necessary protection for the individual. The first line of protection is removed, if the occasion justifies it, by the defence of qualified privilege. Proof of malice, which is the second line of protection, is likely to be very difficult, if not impossible, if the sources of the information cannot be identified. Taken on a case by case basis, the risk that this will be so is one which can be accepted as being in the public interest and therefore justified. But I would be unwilling to extend that risk to political comment generally. I would decline to recognise in this area of our public life a generic qualified privilege.
On this aspect of the case therefore I too am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.
The circumstantial test
As I see it, the application of this third test to the facts of this case raises an issue about the taxomony, or structure, of the common law relating to qualified privilege. There is no doubt that the Court of Appeal broke new ground when it identified this as an additional test which had to be satisfied in relation to any individual occasion when applying the law of qualified privilege. I do not see this, in itself, as a basis for criticising what was, on any view, an admirable, forward-looking and imaginative judgment. Initiatives of this kind are part of the life-blood of the common law. We all benefit from the constant process of adjustment and refinement as one case follows upon another and new problems reveal how the law can be explained better or further clarified.
The difficulty is, perhaps, more one of detail rather than of principle. In the past it has always been necessary to consider the circumstances in order to decide, as a matter of law, whether the interest and duty tests were satisfied. These are not abstract concepts. The occasion has to be identified, because it is the occasion which attracts the qualified privilege. To identify the occasion one must examine the nature of the material, the persons by whom and to whom it was published and in what circumstances. It may be necessary to resolve some questions of fact before the issue of law can be addressed as to whether the occasion was privileged. But the point is that if the issue of law is resolved in favour of the publisher and the argument is then taken against him that because he has misused the occasion he has lost the benefit of the privilege, further questions of fact will be raised. They too will involve a consideration of the circumstances. But it does not follow that the circumstances which will be relevant at this stage of the inquiry will be the same as those which were relevant to the question whether the occasion was privileged. On the contrary, they are likely to be different, as the question which must be answered at this stage is a different question.
As Lord Diplock explained in Horrocks v. Lowe [1975] A.C. 135, 149:
“With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”
Lord Diplock then reviewed the various situations in which it may be proved against the publisher that there was some other dominant and improper motive on his part. The commonest case is where the dominant motive is not to perform the relevant duty or to protect the relevant interest but to give vent to a personal spite or ill-will towards the person defamed. This may be proved by direct evidence or by inference from the circumstances.
The test of malice; if I may paraphrase Brett L.J., as he then was, in Clark v. Molyneux (1877) 3 Q.B.D. 237 at 247 is: has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity. It was contended in Horrocks v. Lowe that the inference of malice should be drawn from the contents of the speech, the circumstances in which it was made, the defendant’s failure two days later to apologise and the evidence which he gave in the witness box. But in the end the judge, who was sitting without a jury, declined to draw the inference that the defendant was indifferent to the truth or falsity of what he said.
In my opinion that case shows that the question of malice also involves an examination of the circumstances. But there is this difference. The question whether the occasion was privileged is a question of law for the judge. The question whether the occasion was abused because of malice is a question of fact which, if the trial is by jury, the jury must decide. This separation of function is clearly identified in the Scottish cases which I mentioned earlier. They were all decided on the preliminary issue of law as to whether the occasion was privileged. In each case the pursuer was seeking the approval of issues which were to be put before the jury at a jury trial. They were unwilling or unable to allege malice, so the whole question turned on the issue of qualified privilege. If the defence was upheld and malice was not averred there was no issue which could be put to the jury. In the United States of America the same separation of function is to be found in paragraph 619 of the American Law Institute, Restatement of the Law (1977), Torts 2d, Ch 26:
“(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege.
“(2)Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege.”
I think that the circumstantial test tends to obscure this difference of function and, perhaps even more importantly, to obscure the difference between questions which go to the question of malice and the question whether the occasion was privileged. It is too widely formulated. It includes “the nature, status and source of the material, and the circumstances of the publication” without any qualification as to the purpose of examining this evidence [1998] 3 W.L.R. 862, 899G. It has had the effect in this case of introducing, at the stage of examining the question of law whether the occasion was privileged, assumptions which I think are relevant only to the question of fact as to the motive of the publisher: as where it is said that it is one thing for him to publish a statement taken from a government press release or the report of a public company chairman or the speech of a university vice-chancellor,and quite another to publish the statement of a political opponent or a business competitor or a disgruntled ex-employee: p. 909H-910A. In its application to the facts of this case, it has introduced questions as to the use of sources, as to a failure to publish Mr. Reynold’s own account of his conduct, as to the appellants’ failure to alert him prior to the publication of their conclusion that he had lied to his coalition colleagues and knowingly misled the Dáil so as to obtain his observations on it: p. 911F-H. In my opinion these considerations go to the question whether the appellants abused the occasion. This is a question of fact for Mr. Reynolds to establish upon a review of all the evidence. They do not go to the question whether the occasion itself was privileged.
In my opinion the circumstantial test is confusing and it should not be adopted.
Conclusion
I consider that the Court of Appeal were wrong to hold at p. 912A, as a matter of law, that in the light of the issues which they considered in their application of the circumstantial test the publication was not protected by qualified privilege. Although there is plainly a question as to whether the occasion was abused, I would hold that the prior question as to whether the occasion itself was privileged has not been properly addressed. It seems to me still to be an open one.
I would allow the appeal. In my opinion the question of law as to whether the occasion was privileged should be reconsidered by the judge at the new trial.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
I agree that this appeal should be dismissed for the reasons given by my noble and learned friend Lord Nicholls of Birkenhead. Like my noble and learned friend Lord Cooke of Thorndon, I am in full agreement with the speech of Lord Nicholls. The few words which I will add should not be read as in any way detracting from the clarity of that agreement.
This case is concerned with the problems which arise from the publication of factual statements which are not correct–i.e. do not conform to the truth. This case is not concerned with freedom of expression and opinion. The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law.
The liberty to communicate (and receive) information has a similar place in a free society but it is important always to remember that it is the communication of information not misinformation which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations.
The law of civil defamation is directly concerned with the private law right not to be unjustly deprived of one’s reputation and recognises the defence of privilege. The justification for this defence is at least in part based upon the needs of society. It can sensibly be asked why society or the law of defamation should tolerate any level of factual inaccuracy. The answer to this question is that any other approach would simply be impractical. Complete factual accuracy may not always be practically achievable nor may it always be possible definitely to establish what is true and what is not. Truth is not in practice an absolute criterion. Nor are the distinctions between what is fact and innuendo and comment always capable of a delineation which leaves no room for disagreement or honest mistake. The free discussion of opinions and the freedom to comment are inevitably liable to overlap with factual assumptions and implications. Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.
There is another aspect of the law which needs to be identified. Save as provided in section 1 of the Defamation Act 1996, any publication of a defamatory statement exposes the publisher of that statement to tortious liability. This is so whether or not he is the originator of the statement or is simply republishing what someone else has said. This rule is relevant to the defence of privilege and the media. Journalists very often have no personal knowledge of the truth or falsity of the facts which they report and publish. Typically they are reporters of material derived from others. The character of the source is relevant to the kind and the extent of the privilege which should be afforded to the publisher. For example, privilege attaches to the reporting of legal proceedings and of the evidence given to and the findings of Inquiries. It is in the public interest that the public should be informed about such matters and this is so even if some of what has been said during such proceedings may not have been true. But the same cannot be said of casual gossip overheard by a journalist; there is no public interest in its repetition unless it be factually true. Between these two extremes there is a spectrum of possible circumstances.
To attract privilege the report must have a qualitative content sufficient to justify the defence should the report turn out to have included some misstatement of fact. It is implicit in the law’s insistence on taking account of the circumstances in which the publication, for which privilege is being claimed, was made that the circumstances include the character of that publication. Privilege does not attach, without more, to the repetition of overheard gossip whether attributed or not nor to speculation however intelligent.
The decided cases confirm both the recognition of the element of public interest in the law of privilege (e.g. Perera v. Peiris [1949] AC 1) and the limits within which it must be kept (Blackshow v. Lord [1984] Q.B. 1; see also Truth (N.Z.) Ltd. v. Holloway [1960] N.Z.L.R. 69). The publisher must show that the publication was in the public interest and he does not do this by merely showing that the subject matter was of public interest. The decided cases also show that, anyway in English law, the doctrine of express malice does not provide an adequate safeguard. It is a very narrow doctrine as explained by Lord Diplock in Horrocks v. Lowe [1975] A.C. 135. The plaintiff has to prove that the publisher did not have an honest belief in the truth of what he was publishing: “the law demands no more” (p.150E). The subjective character of this criterion makes the plaintiff’s burden of proof one which it is difficult to discharge in all but the most blatant cases. It is also inadequate to meet the objective requirements of a satisfactory law of privilege. Both in England and in other countries there have been statutory interventions which affect the structure of this part of the law. In New South Wales this is manifestly so and in New Zealand the statutory definition of malice in section 19 of the Defamation Act 1992 clearly has to be taken into account. In England the provisions of the Defamation Act 1996 take the form of providing the media with additional special defences and therefore do not provide a justification for introducing the further modifications of the existing law for which the appellants have contended.
As your Lordships agree, there is no generic privilege. There are reasons of principle and practical reasons for this. No genus is satisfactory, nor is any genus more satisfactory than the criterion of what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public. It is clearly established in English law that the duty/interest test is not confined to private duties and interests. The public dimension recognised by the law encompasses in a satisfactory and adaptable manner those types of publication to which privilege should attach. Any generic category will tend to be both too wide and too narrow. It will fail to take account of the differing character and circumstances of the publications which may fall within it. It will fail to afford privilege to publications which fall outside its definition but are equally deserving of privilege.
Your Lordships were urged by the appellants to endorse an approach which would leave it to publishers to decide whether or not to publish and to uphold their privilege to do so save where the plaintiff can prove actual bad faith on the part of the publisher. Such an approach would of course be attractive to the media but it would be handing to what are essentially commercial entities a power which would deprive the subjects of such publications of the protection against damaging misinformation. Such persons and the public are entitled to the disinterested and objective involvement of the law. It is for the publisher to establish to the satisfaction of the law that the publication was privileged. It is only once the publisher has done this that a burden of proof passes to the plaintiff. As previously stated, the burden of proof which the plaintiff then has to discharge is not a light one.
There are advantages for the media in the present state of the law as the experience of the United States of America subsequent to the Sullivan case (376 U.S. 254) has shown. The present law is consistent with the publisher being able, if he so chooses, to preserve the confidentiality of his sources. The burden of proving circumstances justifying privilege is upon the publisher. Whether or not he chooses to disclose his sources in order to assist him to do so is (in general) a matter for him. If on the other hand there is some generic privilege which without more confers privilege, the aggrieved party must in justice be able to obtain discovery of all the relevant facts and documents to enable him to displace that privilege. This is what has happened in the United States. The trade-off for the more extensive defence has been the requirement of full disclosure by way of extensive and onerous pretrial discovery.
I agree with Lord Nicholls that the circumstances of publication have to be taken into account in determining whether any particular publication was privileged. This, as the authorities he cites show, is an established part of English law. The criticism to be made of the Court of Appeal judgment is that it sought to treat the circumstances as a separate and distinct element. This was unnecessary and mistaken. But the substance of the judgment must be upheld. The Court of Appeal also reached the right conclusion upon the application of the law to the essentially undisputed facts of the present case. There is no justification for allowing the defendants to reopen that aspect of the case on the retrial.
Hunter v. Gerald Duckworth & Co Ltd. & Anor
[2003] IEHC 81 (31 July 2003)
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 31st of July, 2003.
By order of this Court of the 31st May, 2001 the second defendant was directed to set down for trial the following issues:
1. Whether the second named defendant in writing the booklet which is scheduled to the Statement of Claim is entitled by reason of Article 40.6.1.i. and/or Article 40.3 of Bunreacht na hÉireann to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;
2. Whether the second named defendant as a citizen of the European Union in writing the said booklet was by reason of articles 6 and 49 of the Treaty establishing the European Union free to provide such professional services within the European Union and/or was free to exercise in the State his right of freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms made in Rome on 4th November, 1950 to which the State is a signatory (hereinafter referred to as “the European Convention on Human Rights”) with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;
3. Whether the second named defendant in writing the said booklet is entitled by reason of Article 10 of the European Convention on Human Rights to the right to express freely the statements, convictions, opinion and ideas therein and each and every one of them to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute.
In the case of each of the plaintiffs it is pleaded in the Statement of Claim filed that the plaintiff in common with five other men known as “The Birmingham Six” was the victim of a miscarriage of justice in England arising out of the aftermath to the Birmingham pub bombing in 1974 in which atrocity upwards of 20 people were killed and injured. It is pleaded that the plaintiff Mr. Callaghan who resides in London is a published author and enjoys a wide reputation and that he has been widely written about in Irish newspapers and has appeared on the most popular radio and television programmes dealing with current affairs in Ireland. The first defendant is a publisher who published and distributed a booklet entitled “The Birmingham Six and Other Cases” and subtitled “Victimsof Circumstances”. The second defendant is the author of the booklet and is a Queen’s Counsel.
It is pleaded that the booklet was maliciously printed, published and distributed of and concerning the plaintiff and that the publication is defamatory of the plaintiff. In particular it is complained that the following words either in their natural or ordinary meaning and/or by way of inference and innuendo meant that the quashing of the plaintiff’s conviction did not and does not imply that the plaintiff is entitled to be presumed innocent and are defamatory of the plaintiff in seeking to deprive the plaintiff of the presumption of innocence arising from the quashing of his conviction:
“The successful Appeal against a guilty verdict by the Jury, so the argument runs, restores the Accused to the status of an innocent person which he is possessed at the beginning of the trial. That is not so. The law is, strictly speaking, unconcerned with guilt or innocence. Its concern is conviction or acquittal. Has the Crown proved its case? The Jury’s verdict of not guilty is unequivocally and incontestably to maintain the presumption of innocence. It is the end of the affair. The Jury is unaccountable for any verdict of acquittal. But a Jury’s verdict of guilt which is overturned by a Court of Appeal in law is only a wrongful conviction. The presumption of innocence which subsists only so long as the accused is unconvicted is not revivified.”
In their natural or ordinary or meaning and/or by way of inference or innuendo the defendants and each of them are stating that the quashing of the plaintiff’s conviction did not and does not imply that the plaintiff is entitled to be presumed innocent. In seeking to deprive the plaintiff of the presumption of innocence, arising from the quashing of his conviction, the defendants and each of them have defamed the plaintiff.
In advancing the defamatory thesis set out above, the defendants seek to contradict the judgment and decision of the English Court of Appeal in R. v. Michael Hickey, Vincent Hickey, James Robinson, Patrick Molley [1997] E.W.C.A .Crim 2028, known as the ‘Carl Bridgewater case’ wherein the Court said inter alia;
“If we concluded that the conviction were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established”.
The said defendant, having quoted the above passage at p. 66 of the booklet, states :
“This is a highly questionable statement of the law. Indeed, it is probably wrong. The presumption of innocence survives only unless and until there is a conviction at the hands of the jury; the presumption is thus displaced.”
The above defamatory theme is repeated on the back cover of the said booklet in the following words:
“The presumption of innocence, which every accused is entitled to, abides until it has been overcome by evidence which convinces the jury of the guilt of the accused. Any conviction which is quashed on appeal does not revive the presumption.”
Reference is made to fact that in the booklet questions the statement in the judgment of the Court of Appeal in England in the Karl Bridgewater case where it was stated:
“If we concluded that the convictions were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established”
It is pleaded that it was stated by the author:
“This is a highly questionable statement of the law. Indeed, it is probably wrong. The presumption of innocence survives only unless and until there is a conviction at the hands of the jury, the presumption is thus displaced.”
Furthermore it is stated:
“The presumption of innocence, which every accused is entitled to, abides until it has been overcome by evidence which convinces the jury of the guilt of the accused. Any conviction which is quashed on appeal does not revive the presumption.”
Further in the Statement of Claim reference is made to the following passages at p. 81 of the booklet where it is stated:
“The judicial definitiveness about the propriety of the Birmingham Six’s convictions were pounced upon by the supporters of the six men who, abetted by the media, succeeded in their incessant public efforts, not only ultimately to have the convictions set aside but in the process to undermine public confidence in English criminal justice. The former activity was laudable; the latter, opportunistic and misguided.”
Further at p. 81 aforesaid the defendants published the following passage:
“This skilful attack has been sustained by public acceptance of the view that ‘miscarriages of justice’ had undermined confidence in the criminal justice system. Credence for that view was even accorded recognition in the address by Lord Woolf on the occasion of the thanksgiving for the life and work of Lord Taylor of Gosforth on 15 July 1997. Lord Woolf alluded to Lord Taylor’s chief justiceship from 1992 to 1996 as having done, in Lord Woolf’s view, much as to restore public confidence in criminal justice after some ‘regrettable miscarriages of justice’.”
The plain and ordinary meaning of the above words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of The Birmingham Six both the plaintiff and his fellow members of the “Six” and their supporters undermine public confidence in the criminal justice system. The inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of six men who had spent more than sixteen years each in prison as a result of convictions obtained through defective forensic evidence and unreliable confessions. A further inference was that activities of the supporters of The Birmingham Six, including the Plaintiff herein, were “opportunistic” and “misguided” and they were in fact guilty of the offences for which they were wrongly convicted.
Further in the opening page of the prologue (at p. 7) the defendant criticise and deprecate the use of the phrase “regrettable miscarriage of justice” by the Master of the Rolls, Lord Woolf of Barnes, on the occasion of his address at the service of his thanksgiving in St. Paul’s Cathedral for the life and work of Lord Taylor of Gosforth, the Lord Chief Justice of England from 1992 to 1996, who died on the 28th April, 1997. At p. 8 of the booklet the following passage appears:
“At the same time the Home Secretary, in the course of correspondence with the Birmingham Six over the level of the compensation offered, expressed his apologies for the miscarriage of justice they had suffered. And the distinguished writer and columnist in the Independent, Polly Toynbee, wrote, in welcoming Chris Mullin MP as the new chairman of the Home Affairs Select Committee, that ‘with very little support’, in the face of scathing indifference from many in his own party, he ploughed a lonely furrow in proving the innocence of the Birmingham Six’ (italics supplied).”
The Plaintiff avers that the continuous attack in the pages of the booklet against those who supported his innocence and campaigned for his vindication and release represents both an overt and covert attack on the innocence of the Plaintiff.
It is pleaded that the plain and ordinary meaning of these words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of the Birmingham Six both the plaintiffs and their fellow members of ‘the Six’ undermined public confidence in the criminal justice system. It is pleaded that the inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of the six men who had spent more than sixteen years each in prison as a result of the convictions obtained through defective forensic evidence and unreliable confessions, that the activities of the supporters of the Birmingham Six were “opportunistic” and “misguided” and their “attack” on the verdict “skilful” only if the Birmingham Six, including the plaintiffs were in fact guilty of the offences for which they were wrongly convicted.
The plaintiffs plea that what they allege to be a continuous attack in the pages of the booklet against those who supported their innocence and campaigned for their vindication and release represents both an overt and covert attack on the innocence of the plaintiffs.
It is further pleaded that a central and reinforcing theme as to the suggested guilt of the plaintiff is the strong reliance placed on the circumstantial evidence adduced by the Crown during the prosecution. It is pleaded that further passages quoted by the plaintiffs in the Statement of Claim in their plain and ordinary meaning and/or by way of inference or innuendo are a clear invitation to the student or public reader to convict the Birmingham Six on the basis of the circumstantial evidence alone in the case. It is pleaded that the quoted passage flies in the face of the statement by the trial judge who is alleged to have stated that the matters of circumstantial evidence did not go beyond raising a suspicion and fell a long way short of anything that anyone could possibly regard as proof of involvement in the pub bombings.
It is pleaded that in the face of the clear direction to the jury by the trial judge regarding the total lack of value of circumstantial evidence as not going beyond raising a suspicion, that the emphasis placed by the defendants on the possibility of the circumstantial evidence alone sustaining the conviction of the Birmingham Six is clearly defamatory in suggesting the guilt of the Birmingham Six, including the plaintiffs.
It is further pleaded that other words published are in context a direct suggestion that the plaintiffs were in fact guilty of the “horrendous crimes” with which they were originally charged. It is pleaded further that in their contradiction of the charge of the trial judge to the jury the defendants are leaving a decision on the guilt of the Birmingham Six in the hands of the student or the reader or the public on the basis of the circumstantial evidence and in doing so that they defame the plaintiffs by the clear inference that a proper view of the circumstantial evidence would have led to a reaffirmation of the conviction of the Birmingham Six including the plaintiffs, which it is pleaded involves a total contradiction of the summing up of the trial judge to the jury. It is further pleaded that criticism of the prosecution and/or the trial judge for absolving the jury of any need to return a verdict on the charge of conspiracy and/or an attempt to cause explosions is a reiteration of the suggestion that, whatever about the result of the Court of Appeal in their favour, the Birmingham Six, including the plaintiffs were guilty of offences of conspiracy and attempting to cause explosions.
It is further pleaded that a comparison of the Birmingham Six and Guildford Four cases is used to defame the plaintiffs.
It is pleaded that passages dealing with the alleged facts were maliciously selected from the mass of evidence and were specific to the respective plaintiffs. It is pleaded that in the premises and relying on all the passages quoted and generally on the tenor and thrust of the entire of the booklet, and the back cover, the plaintiffs have been defamed and their right to a good name pursuant to the Constitution has been violated. It is pleaded that the words both in their ordinary and natural meaning, and the context in which they were published, and further and in the alternative by way of inference and innuendo, meant and were understood to mean various specified matters alleged to be defamatory of the plaintiffs.
A full defence has been filed to the plaintiffs’ claims herein including a plea that the second named defendant was entitled as a matter of public right to write and publish the booklet and each and every statement contained therein. It is pleaded that the booklet contains an analysis of English law on the function of the Court of Appeal in England in allowing an appeal against conviction, the position of circumstantial evidence in English law and the system of trial by judge and jury in English law. It is pleaded that as stated in the booklet, the second defendant has made this analysis principally but not exclusively in relation to the Birmingham Six and he has looked only at the transcripts of appeals heard in public in relation to the said case and in the Court of Appeal in 1987 and 1991 and checked facts with the book by Mr. Chris Mullin M.P. “Error of Judgment: the truth about the Birmingham Bombings” published in 1986 and revised in 1997.
It is pleaded that the Court of Appeal freed the plaintiffs because it decided that the verdict of the jury in the Birmingham Six case could not stand due to flawed forensic evidence and due to the inadmissibility of statements made to the police which had been obtained improperly. It is pleaded that in its judgment the Court of Appeal stated that it was neither entitled nor obliged under its statutory powers to say whether the plaintiffs were innocent; as that court was concerned solely with whether the verdicts of the jury at their trial could stand. It is pleaded that the verdict of the jury at the trial could not stand as being “unsafe or unsatisfactory”. It is pleaded that that court concluded that its role in quashing a wrongful conviction was a point of great constitutional significance meaning of great constitutional significance in England and Wales. It is pleaded that the second defendant in the booklet seeks to explain the point of constitutional significance, stating therein that no one can properly say that either plaintiff was guilty.
It is pleaded that in writing the booklet the second defendant was exercising his right to freedom of expression including the freedom to hold and express the opinions and convictions and impart the information and ideas expressed therein and each and every one of them, in particular and without prejudice to the generality of the foregoing, to study and express his views and opinions upon the legal issues and matters before the Court of Appeal in England in 1987 and 1991 relating to the Birmingham Six case.
The second defendant further pleads by reference to Article 40.6.1 of the Constitution to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all of the information contained therein. It is pleaded that in writing the booklet he has exercised this right. It is further pleaded that the second defendant has under Article 40.3 of the Constitution a personal right to his freedom to express each and every statement, conviction, opinion and idea contained in the booklet and to impart all the information contained therein. It is pleaded in these premises that the publication thereof was not as a matter of law, defamatory of the plaintiffs or either of them as alleged or at all.
The second defendant further pleads that under Article 49 of the Treaty Establishing the European Union he was free to provide such professional services within the European Union and/or was free to exercise in the State his rights of freedom of expression under Article 10 of the European Convention on Human Rights.
The second defendant pleads that by reason of Article 6.2 of the Treaty on European Union the European Union shall have respect for fundamental rights guaranteed by the European Convention on Human Rights and by reason of same a citizen of the European Union has the rights guaranteed by the Convention specifically with regard to the provision of professional services by such a citizen in the Member States. The second defendant invokes his rights as a citizen of the European Union and in particular his rights under Article 10 of the Convention and/or his rights under Article 49 of the Treaty Establishing the European Community and pleads that in the premises the publication of the booklet was not as a matter of law defamatory of the plaintiffs as alleged or at all. It is pleaded that in the alternative under the law of the State there is an obligation to grant to a citizen of the European Union the rights under the Treaty Establishing the European Union and/or the European Convention of Human Rights when such citizens are defendants before the Courts of a state other than that in which they are domiciled by reason of the Brussels convention and in the premises it is pleaded that the publication of the booklet was not as a matter of law defamatory of the plaintiffs either as alleged or at all.
It is pleaded that in the premises the plaintiffs have no cause of action as pleaded or otherwise and the second defendant denies each and every allegation of defamation.
Submissions
On behalf of the second defendant (hereinafter referred to as ‘the defendant’)it is submitted by Mr. Michael Ashe Q.C. that the essential issue is whether the constitutional guarantee to express freely convictions and opinions prevails over the constitutional protection afforded to one’s good name. It is submitted that the defendant is entitled to express freely his convictions and opinions as appear in the booklet. It is submitted that what is at issue is the balance between Article 40.6.1 and 40.3.1 of the Constitution and Article 40.3.2. of the Constitution. The question posed is whether and to what extent the common law of defamation, which has been developed over centuries, reflects and implements an appropriate constitutional balance. It is submitted that the action herein represents a disproportionate interference with the right of freedom of expression. It is submitted that the right of the defendant to express freely his convictions and opinions about matters of importance is fundamental in a democratic society and the defendant’s contention is that the booklet represents such an expression on matters which are public property and further the booklet represents legal analysis and comment. Having regard to the provisions of Article 40.3.2 of the Constitution it is submitted that while an attack on the character is possible the Constitution is concerned with unjust attacks. It is submitted that the instant actions represent a disproportionate interference with the freedom of expression which pre-dominates as a constitutional right.
It is submitted that if the defendant is correct on the issue of freedom of expression, there can as a matter of law be no action in defamation in either case.
It is submitted that the appropriate balance is not achieved by the law of defamation as generally perceived and that the concomitant restrictions on the right to freedom of expression are invalid under the Constitution.
Counsel submits that the question is whether (and if so, to what extent) the common law of defamation, which has been developed over the centuries, reflects and implements an appropriate constitutional balance. It is submitted that whatever the rights of the plaintiffs, the present actions are a disproportionate intereference with the right to freedom of expression.
It is submitted that the booklet is about functions, powers and systems of evidence and trial in the courts of England and Wales. The defendant contends that the right to express freely his convictions and opinions about matters of importance is fundamental in a democratic society. Court proceedings are public property and the media have two distinct functions in relation to court proceedings. The first is the reporting and recording of proceedings as they unfold, in circumstances where at the time opinion and comment have to be avoided, and secondly, legal analysis and comment which has to await the conclusion of the proceedings. It is submitted that pure comment and opinion regarding legal proceedings are, when the proceedings have concluded, as important as reporting those proceedings while they are continuing.
Counsel concedes that the plaintiffs may be upset and annoyed at the revisiting of an awful event in their lives, but that in light of the freedom of expression enjoyed by the defendant the plaintiffs do not have a right of action against him.
Counsel refers to In re Hibernia National Review [1976] I.R. 389 where at p. 391 Kenny J. in delivering the judgment of the Supreme Court stated, inter alia, as follows:
“The Court wishes to emphasise that criticism of the retention of the death penalty, of the Offences Against the State Acts or of any of their provisions, and of the establishment of the Special Criminal Court are not a contempt of court. These are matters which may be debated in public even if the comments are expressed in strong language or are uninformed or foolish.”
With regard to the fact that the law of defamation is subject to constitutional limitations reliance is placed upon the dicta of Denham J. in O’Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 where she stated inter alia at pp. 32 and 33:
“The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1° and 40.6.1°(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by art. 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and
the freedom of expression is a matter of importance in a democracy and is of public interest.”
It is submitted that the standard of constitutional guarantee in Ireland is the standard against which the common law of libel has to be measured.
Further reliance is placed upon the dicta of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at pp.403 and 404 where he stated:
“The right to freedom of expression is one of the personal rights of the citizen which the State is bound to defend and vindicate, as far as practicable, in accordance with the provisions of Article 40.3 of the Constitution. It is of course surrounded by many reservations and safeguards. But it is a positive right which the State is pledged to defend and the function of the court is to preserve the balance between the guarantee and the reservations in such a way as to give to the right guaranteed life and reality. The position is totally different from the position in a common law country where the citizen is entitled to say anything he wishes as long as it is not illegal.”
Counsel submits that guidance as to the underlying philosophy of the right to freedom of expression can be gained from the jurisprudence of other countries including the United States of America. It is submitted that an award of damages in a libel suit represents a penalty on speech and raises the deterrent or chilling influence upon the exercise by citizens of their constitutional right to express freely their convictions and opinions. Counsel refers to New York Times v. Sullivan 376 U.S. 254 (1964) where Brennan J. in a seminal judgment of the United States Supreme Court stated, inter alia,
“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth – whether administered by judges, juries, or administrative officials – and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall,. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” N. A. A. C. P. v. Button, …. That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive,” N. A. A. C. P. v. Button, …. Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. If judges are to be treated as “men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, , surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment.
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.
…
The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale.
…
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred…. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” … The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not….[W]e consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law.”
Counsel submits that the freedom to advocate an idea is a core guarantee of Articles 40.6.1. and 40.3.1. of the Constitution. Counsel refers to the jurisprudence of the U.S. Supreme Court relating to the freedom of expression guaranteed by the First Amendment of the U.S. constitution as opposed to the common law on defamation.
Counsel submits that the political function of free speech is of paramount importance in our constitutional democracy. Counsel refers to O’Brien v. Mirror Group Newspapers [2001] 1 I.R. 1 in which Denham J. indicated that the Constitution and the European Convention on Human Rights require that a balance be achieved, and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest. Counsel further refers to Kelly v. O’Neill in which Denham J. stated that:
“…[f]reedom of expression is not an absolute right under the Constitution, however, it is a fundamental right of great importance in a democratic society.” In the same case Keane J. stated that “…[f]reedom of expression is undoubtedly a value of critical importance in a democratic society, but like every other right guaranteed, either expressly or by implication, by the Constitution it is not an absolute right.”
It is submitted that the freedom of expression recognised by the Constitution must not be inhibited by a deterrent factor of the law of defamation and that if the inhibition goes too far it may undermine the constitutional right to freedom of expression.
It is submitted that the freedom of expression involving the advancement of knowledge in the ‘market place of ideas’ is essential in a democratic society.
Counsel further refers to the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 in which, having quoted Article 10 of the European Convention on Human Rights he stated, inter alia, as follows:
“It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.…. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.
This interpretation appears consistent with the judgment of O’Higgins C.J. in Cullen v. Toibin [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused’s appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-
“There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed.”
….
Costello J. accepted that a “a right to communicate” was one of the unspecified rights of the citizen protected by Article 40.3 of the Constitution, and he reiterated this viewin Kearney v. Minister for Justice [1986] I.R. 116 at p. 118. I would be prepared to accept that such a right exists as one of the unspecified rights of the citizen but, if such a right exists, it must include not only the right to communicate facts but also the right to communicate convictions opinions and even feelings. The question then arises of what is the relationship between this right and the right of freedom of expression guaranteed by Article 40.6 of the Constitution.
In some respects the two rights may overlap and may be complimentary. But the right of freedom of expression is primarily concerned with the public statements of the citizen. When the Constitution guarantees the citizen liberty for the exercise of this right it is guaranteeing to him that he will not be punished by the criminal law or placed under any unconstitutional restriction for freely stating in public his convictions and opinions, be they right or wrong. A fortiori it guarantees him, but again subject to the same constitutional restrictions, the right to state the facts on which these convictions and opinions are based. The Constitution guarantees to the organs of public opinion liberty for the criticism of government policy. But it would be absurd to suggest that the press enjoys constitutional protection under Article 40.6.1° (i) when criticising government policy but not when reporting the facts on which its criticism is based.
The sister rights guaranteed by Article 40.6.1° are the right of the citizens “to assemble peaceably and without arms” and the right of the citizens “to form associations and unions” but it would be absurd to suggest that the right of the citizens “to assemble peaceably and without arms” guaranteed the right of the citizens to assemble but not their right actually to hold a meeting or that the right of the citizens “to form associations and unions” guaranteed the right of the citizens to “form” associations but not their right to manage or run them for any particular purpose. Likewise it seems to me absurd to suggest that the constitutional right of the citizens to express freely their convictions and opinions does not also protect, subject to constitutional exceptions, their right to state facts. In this context it is important to remember that we are construing, not a revenue statute, but a constitution.
The freedom of expression guaranteed by Article 40.6.1° of the Constitution includes criticism of government policy. A fortiori it includes criticism of other aspects of State activity including the working of the courts. Apart from particular statutes designed to protect privacy or the weaker members of the community there are only two kinds of restrictions on publicity or criticism concerning the courts. Both exist to protect the administration of justice. The first kind of restriction is on publicity which tends to deny to an accused person a fair trial and the other is on the kind of irresponsible and malicious criticism which damages the administration of justice by bringing the courts into contempt.”
Counsel further refers to New York Times v. Sullivan 376 U.S. 254 (1964) and Mills v. Alabama 384 U.S. 214 (1966) insofar as they refer to the constitutional right of free expression as enshrined in the First Amendment as being directed to the free discussion of governmental affairs.
Counsel further submits that one of the core functions of the constitutional guarantee of freedom of expression is to provide refuge for unpopular, unorthodox and provocative opinions. In support of this submission counsel refers to an academic work and to an authority of the U.S. Supreme Court in Terminiello v. Chicago 337 U.S. 1 (1949) in which Justice Douglas in delivering the majority opinion of the Court stated, inter alia, as follows:
“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571 to 572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to reduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest Counsel submits that the common law of defamation was not developed or formulated to reflect the delicate balancing exercise which the Constitution requires when there is a conflict between the constitutional right to freedom of expression and the constitutional protection of one’s good name. It is submitted that works of the nature of the subject booklet are written to put forward a view, provoke debate and evoke criticism, both favourable and unfavourable.”
It is submitted that the defendant should not be required to demonstrate that either his booklet attracts some privilege (which it is conceded is unlikely) or that the booklet is a matter of fair comment on a matter of public interest. As the defence of fair comment requires that the truth of the facts alleged or referred to in the words complained of to be proved by the defendant objectively in order to asset his freedom of expression, it is submitted that the law of defamation as currently recognised wholly fails to achieve an appropriate and proportionate balance between the right to freedom of expression and the protection of one’s good name from unjust attack. It is submitted that if an appropriate balance were to be achieved the defendant would not be subject to the law of defamation in respect of the booklet at issue. It is submitted that the common law must submit to the constitutional guarantee of freedom of expression if the reality of the democratic state referred to in Article 5 of the Constitution is fully to be realised. It is submitted that such a state is characterised by robust and open debate with society capable of accepting (even if not agreeing with) a plurality of views. It is submitted that commentators ought not to be inhibited from being vigorous in their opinions and should not be deterred from voicing their criticism even if such criticism and opinions offend. It is submitted that Article 40.6.1. of the Constitution recognises this, while the common law barely tolerates it. It is submitted that a person’s right to freedom of expression must prevail unless a plaintiff can establish to the satisfaction of the court that the publication constitutes an unjust attack on his good name such as to warrant the limitations on the former right inherent in an action in defamation.
It is submitted that the approach of the United States Supreme Court is similar to the recognition given to the freedom of expression under the Irish constitution. At the same time counsel stresses that he is not urging this court to reach the same conclusion as the U.S. Supreme Court in the case of New York Times v. Sullivan. However, it is submitted that the same philosophy applies in that case and under the Constitution in this jurisdiction.
Counsel refers to Article 10 of the European Convention on Human Rights (‘the Convention’) which provides:
“Article 10 – Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
It is submitted that Article 10 involves a similar concept to that found in Article 46 of the Constitution albeit differently expressed. Counsel refers to portion of the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at p. 404 where he stated “…[i]f one compares Article 40.6.1o (i) of the Irish Constitition with art. 10 of the European Convention on Human Rights (which deals with freedom of expression) one finds significant similarities as well as important differences.”
Later at pp. 404 and 405 he stated as follows:
“It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.
Article 40.6.1° (i) is unique in conferring liberties and rights upon the “organs of public opinion”. “Organs” are not capable of having rights so
this reference must be taken to mean a reference to those persons whether natural or artificial (such as the applicants in the present action) who control the organs of public opinion. These rights must include the right to report the news as well as the right to comment on it. A constitutional right which protected the right to comment on the news but not the right to report it would appear to me to be a nonsense. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.
This interpretation appears consistent with the judgment of O’Higgins C.J. in Cullen v. Toibin [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused’s appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-
“There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed.” “
Counsel refers to the jurisprudence of the European Court of Human Rights in relation to Article 10 of the European Convention on Human Rights (‘the Convention’) in De Haes and Gijsels v.Belgium (1998) 25 EHRR 1 and Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125. In the former case the Court reiterated that “freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community. In addition journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation.” The court added that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. In the latter case the Court stated, inter alia, as follows:
“One factor of particular importance for the Court’s determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest …. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation …. In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern.”
In Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125 the Court indicated, inter alia, at para. 65 of its judgment:
“65. Article 10 of the Convention does not, however, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is question of attacking the reputation of private individuals and undermining the “rights of others”…. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”
In that particular case the Court found that there had been a violation of Article 10 of the Convention as there was no reasonable relationship of proportionality between the applicant journalists’ right to freedom of expression and the legitimate aim pursued of protecting the reputation of the plaintiffs in defamation proceedings who were seal hunters. In regard to the instant case counsel relies upon the fact that the defendant’s booklet is self contained and comprehensive and relies on other material including transcripts and other publications. Counsel relies upon the fact that in the instant case the matters complained of are the opinions of the defendant. It is submitted that in writing a reflective booklet in relation to the case in which the plaintiffs were involved, the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the case over a number of years. It is submitted just as press function is essential so is this function of imparting comment and opinion, even on matters that might offend.
It is submitted that in the booklet the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the cases over a number of years and that just as press freedom is essential so is the function of imparting comment and opinion even on matters that might offend.
It is submitted that the jurisprudence of the European Court of Human Rights demonstrates the importance of the right of freedom of expression under the Convention. It does not ignore the legitimate protection of a good name. It is submitted that the approach is to limit the right of freedom of expression only where it exceeds the bounds of permissible criticism and that it does not require the maker of a statement to justify his freedom to express his comments and opinions. It is submitted that this is the approach of the Constitution. It is submitted that the booklet cannot be an unjust attack on the good name of either plaintiff. It is submitted that the cases referred to by counsel demonstrate the development of the case law of the European Court of Human Rights.
Counsel refers to Handyside v. The United Kingdom (1976) E.H.H.R. SeriesA no.24 in which it was stated, inter alia, as follows:
“Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force ….
49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States’ engagements is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its “necessity”; it covers not only the basic legislation but also the decision applying it, even one given by an independent court. In this respect, the Court refers to Article 50 (art. 50) of the Convention (“decision or … measure taken by a legal authority or any other authority”) as well as to its own case-law.
The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.
From another standpoint, whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in this case, whether “restrictions” or “penalties” were conducive to the “protection of morals” which made them “necessary” in a “democratic society”.”
Counsel refers to Nilsen and Johnson v. Norway in which the Court added at para. 43 of its judgment:
“As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v.United Kingdom (no. 1) judgment of 26 April, 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway.”
With regard to this jurisprudence and the decision in New York Times v. Sullivan 376 U.S. 254 (1964) counsel submits that the defendant should not be subject to a test of strict liability. It is submitted that the right of freedom of expression should only be taken away by fault where it is shown. It is submitted that it is not right to force the defendant to defend his expression of opinions in the absence of fault. It is submitted that where it is shown that the defendant acted in bad faith or unreasonably this may amount to an unjust attack on the plaintiffs’ reputation. In this context counsel submits that acting unreasonably might include negligence. On this basis it is submitted that a correct approach of the law would be to require the plaintiff to establish fault on the part of the defendant. It is submitted that where an opinion is so unreasonable it should not be protected by the right of freedom of expression.
With regard to the law of the European Union it is submitted that as fundamental rights form an integral part of European Union law, including Article 10 of the Convention and national rules falling within the scope of European Union law. It is submitted that the defendant is providing a service within Article 49 of the E.U. Treaty and is entitled to exercise his rights under Article 10 of the Convention a and to be treated in accordance with a common code of fundamental values throughout the Union.
It is submitted that insofar as the common law does not reflect the freedom of expression recognised by the Constitution it has not been carried forward under Article 50 of the Constitution as it is inconsistent with it.
It is submitted that the booklet is there to provoke a reaction and in it the defendant expresses freely opinions on matters of public importance. It is submitted that the conclusions in the booklet are not about any particular individual. It is submitted that the defendant’s opinion is what is important and not whether people agree with it.
It is submitted that the defendant’s position is not protected under the existing law of privilege or fair comment. It is submitted that the defendant should not have to go to court to assert his right to freedom of expression. It is submitted that if a fair balance was struck in the law of defamation having regard to the Constitution, the defendant would not be subject to defamation proceedings in respect of the opinions contained in the booklet. It is submitted that the right to freedom of expression must prevail over the common law. It is submitted that the existing law puts the defendant “on the back foot” and that this is not consistent with the constitutional right to freedom of expression.
On behalf of the plaintiffs it is conceded that Article 10 does not form part of the domestic law of the State but the Court can have regard to its provisions. Counsel refers to the judgment of Hamilton C.J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:
“Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions.”
Geoghegan J., in the course of his judgment in Murphy v. I.R.T.C. [1997] 2 ILRM 467 stated at p.476:-
“Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.”
Counsel further refers to Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436 where Henchy J. stated, inter alia, at p. 450
“the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.”
Counsel refers to Article 10 of the Convention and submits that it is clear that it recognises that the exercise of the freedoms referred to in it may be subject to such restrictions and penalties as a prescribed by law in the States which are party to the Convention and which are necessary in a democratic society for the protection of the reputation and rights of others. Counsel notes that regard may be had by this court to the provisions of the Convention, although not part of the municipal law of the State. Counsel refers to portion of the judgment of Hamilton J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:
“There does not appear to be any conflict between Article 10 and the common law or the Constitution.”
Counsel further refers to portion of the judgment of O’Hanlon J. in Desmond v. Glackin [1993] 3 I.R. 1 at pp. 28 and 29 where he stated:
“As Ireland has ratified the Convention and is a party to it, and as the law of contempt of court is based (as was stated by Lord Reid) on public policy, I think it is legitimate to assume that our public policy is in accord with the Convention or at least that the provisions of the Convention can be considered when determining issues of public policy. The Convention itself is not a code of legal principles which are enforceable in the domestic courts, as was made clear in In re Ó Láighléis [1960] I.R. 93, but this does not prevent the judgment of the European Court of Human Rights from having a persuasive effect when considering the common law regarding contempt of court in the light of the constitutional guarantees of freedom of expression contained in our Constitution of 1937.”
With regard to de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 it is submitted by reference to Tolstoy Milolavsky v. United Kingdom (1995) 20 EHRR 442 that while Article 10 may come into play in regard to the quantum of damages awarded in a defamation suit insofar as an award of damages must bear a reasonable relationship of proportionality to the injury to the reputation suffered, there is no legal basis for suggesting that that Article 10 of the Convention can displace a jury trial on an allegation of defamation by an Irish citizen.
Counsel refers to portion of the judgment of Hamilton C.J. in de Rossa v. Independent Newspapers plc where he stated at p. 456:
“By virtue of the provisions of Article 40.6.1° of the Constitution, the defendant is entitled, subject to the restrictions therein contained, to exercise the right to express freely its convictions and opinions.
The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1° and 40.3.2° which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.
Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.
The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan. v.O’Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.
The right to freedom of expression is guaranteed by Article 10(1) of the Convention but the exercise of such a right is subject to the restrictions contained in Article. 10(2), the relevant provision of which reads as follows:-
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others …”
As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states at p. 472:-
“… under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
Both the Constitution and the Convention guarantee the right to freedom of expression but also recognise the right of the citizen to his “good name” and “reputation”.
The only remedy open to a person whose right to his good name or reputation has been damaged or wrongfully interfered with is by way of an action for damages.
The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation.”
Counsel further refers to portion of the judgment of the Chief Justice at p. 458 where he added:
“The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.
Neither the Constitution nor the Convention requires that the guidelines to be given to juries should be changed in the manner argued for by the defendant.”
It is submitted that this statement, with which the majority of the Supreme Court agreed demonstrates how regard is to be had to the Convention. It is submitted that the defendant’s right to express freely statements, convictions, opinions and ideas in the booklet at issue is subject to the limitations arising under the common law relative to defamation arising on the balancing of rights under the Constitution between Articles 40.6.1. and Article 40.3., having due regard to the Convention and that the defendant cannot impugn these proceedings as they are presently constituted.
It is submitted that the plaintiffs have a cause of action, which does not amount to saying that they will succeed in their actions.
The plaintiffs apprehend that the defendant will seek to raise a defence of qualified privilege and in this regard refer to the decision of the Court of Appeal in Reynolds v. Times Newspapers Ltd. [1998] 3 AllER 961 and to the subsequent decision of the House of Lords at [1999] 4 All ER 609 in which Lord Nicholls expressed the view at p. 625 of the report that the common law approach to the issue of qualified privilege accorded with the then present state of the human rights jurisprudence.
Counsel further refers to Gately on Libel (9th Ed.) on the same topic.
It is submitted that the plaintiffs are private citizens who have the right to protect their good name by invoking the jurisdiction of this court in regard to the alleged defamation. It is submitted that the jurisprudence of the European Court of Human Rights in relation to qualified privilege circles around the issue of political affairs. Counsel stresses that the plaintiffs are private citizens
Counsel refers to McMahon & Binchy insofar as it is indicated that the approach of the courts has been that the common law principles in the law of defamation do not require to be modified in the light of the Constitution. In this regard reference is made to the judgment of Geoghegan J. in Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 where he stated that any consideration of Article 40.6.1.(i) would have to be balanced by consideration of Article 40.3.2. which requires the State by its laws to protect as it may from unjust attack and in the case of injustice done vindicate the good name of every citizen.
In conclusion counsel submits that the Irish courts see no difference between the common law, the Constitution and Article 10 of the Convention and the English courts see no difference between the common law and Article 10. It is submitted that the common law is clear and that subject only to the defence of privilege, a person is liable under current law for any untrue statement of fact which tends to lower another in the eyes of the average right-thinking person.
Mr. Eoin McCullough S.C. on behalf of the Attorney General submits that essentially the preliminary issue to be tried by this court relates to the balancing of conflicting rights afforded to citizens under Articles 40.6.1 (i) and 40.3.1 of the Constitution dealing with freedom of expression and the right of every citizen to their good name and whether in the circumstances of this case the constitutional guarantee to express freely convictions and opinion prevails over the constitutional protection of a good name.
The Attorney General agrees that a legal balance has to be maintained between the guarantee of freedom of expression and the protection afforded to one’s good name, both of which are constitutionally enshrined. The issue is to which right superior recognition is to be given in the case of a conflict. Counsel refers to Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 and Hynes-O’Sullivan. v.O’Driscoll [1988] I.R. 436 insofar as the Superior Courts had previously addressed the issue of these competing rights.
The Attorney General submits that when balancing these constitutional rights one must examine the circumstances of the particular case and evaluate the qualifications and/or exceptions to the rights under the Constitution. The Attorney General takes issue with the submission made on behalf of the defendant that the freedom of expression under the Constitution is paramount. It is submitted that nowhere does the defendant indicate the basis upon which criticism would be evaluated where he submits that freedom of expression “ought not to be curtailed unless it exceeds the bounds of permissible criticism”, for the purpose of determining whether the criticism in question is permissible or otherwise. On this basis the Attorney General submits that the full extent of the rights claimed by the defendant are not available to him.
Nevertheless the Attorney General acknowledges that the protection provided by the traditional law of defamation may be inadequate to meet the requirements of the Constitution. It is submitted that the rights embodied in the Constitution are not derived from the common law. It is submitted that the requirements of the Constitution are not necessarily met by the pre-existing common law of defamation. The correct balance between the competing rights is to be found in the Constitution itself which may be interpreted in the light of general international norms and standards. In this regard it is submitted that the provisions of the Convention are particularly significant, albeit not part of the domestic law of the State.
Counsel refers to the jurisprudence of the European Court of Human Rights and in particular to cases illustrating the protection afforded by Article 10 of the Convention to statements made on matters of public concern, where the same are made in good faith – Lingens v. Austria (1986) 8 EHRR 407; Oberschlick v. Austria (1995) 19 EHRR 389; Oberschlick v. Austria (No. 2) (Judgment 1 July, 1997) and Torgeirson v. Iceland (1992) 14 EHRR 843. It is recognised that insofar as expressions of opinion are concerned, the Convention does not require either that they be proved to be true or that the underlying facts be proved to be true. Even in respect to a statement of fact as opposed to expressions of opinion it is not always necessary for a defendant to prove the truth of same. If a statement is made in bad faith or without any attempt to check the facts of the matter, then Article 10 does not require that the statement be protected. Vide Prager and Oberschlick v. Austria (1996) 21 EHRR 1; De Haes and Gijsels v. Belgium (Judgment 24th February,1997). It is submitted that if the provisions of the Constitution are in accordance with Article 10 then free speech about affairs of public interest are in accordance with Article 10 of the Convention and free speech about affairs of public interest may require a greater degree of protection than has traditionally been understood to be provided by the pre-Constitution common law relating to qualified privilege. In particular, speech on matters of public concern consisting wholly or largely of the expression of opinion may not require in all cases to be justified and the truth of the facts underlying such opinion may not require in all cases to be proved.
Counsel for the Attorney General refers to developments in other common law jurisdictions tending to enlarge upon the range of material that can legitimately be published without fear of attracting liability, in some cases based upon a development of the common law and in other cases having a constitutional origin.
Counsel refers to the First Amendment to the U.S. Constitution and to the decision of the United States Supreme Court in New York Times v. Sullivan 376 U.S. 254 (1964) insofar as a restriction has been placed on the right of public officials to succeed in a claim for defamation where a plaintiff must be able to show “by clear and convincing evidence” that the defendant published the statement with knowledge of its falsity or in reckless disregard of its truth or falsity. This protection has now been extended to claims by “public figures”. The Attorney General does not contend that the good name of the individual guaranteed protection in the Constitution would be adequately vindicated by the adoption of such an approach in this jurisdiction.
Counsel refers to recent jurisprudence of the Australian courts in the cases of Theophanous v. Herald and Weekly Times (1994) 182 C.L.R. 104 and Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104. While there is no explicit guarantee in the Australian Constitution to freedom of speech, the courts have recognised that freedom of communication on matters of government and politics is an indispensable incident of Australian law. It has been determined that the law must be compatible with the guarantee of freedom of political discussion. There has been a development of the law with particular regard to the concept of qualified privilege. The common law in Australia has now recognised publication on a “government or political matter” as an occasion of qualified privilege, with reciprocity between the media and the public. The privilege covers political affairs at all levels and may extend to cover discussion of matters of a similar nature in other countries. There is an obligation on the defendant to show that he has satisfied the requirements of reasonable conduct. As a general rule a defendant must show that he/she had:
“reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open to verify the accuracy of the material and did not believe the imputation to be untrue. The defendant’s conduct will not be considered reasonable unless the defendant has sought a response from the person defamed and published a response made (if any) except in cases where the seeking of publication of a response was not practicable or it was unnecessary to give the plaintiff and opportunity to respond.”
The plaintiff will succeed if malice can be established. It is recognised that in the case of the subject publication that this development of the law might not avail the defendant as it is submitted that the publication at issue is at best marginally connected with the political process.
Counsel further refers this court to the development of the common law in New Zealand. In Lange v. Atkinson [1998] 3 N.Z.L.R. 424 and [2000] N.Z.L.R. 385 the Court of Appeal held that the defence of qualified privilege applies to generally published statements made by the actions and qualities of those currently or formerly elected to parliament and those with immediate aspirations to be members, so far as those aspirations and qualities directly affected the capacity to meet their public responsibilities. The Court held that the defamatory statement must bear on the actions and qualities of the politician which directly affect his/her capacity to meet his/her public responsibilities. The Court held that it was necessary to look at the circumstances of the publication, including the identity of the publisher, the context, the likely audience and the content of the statement.
This decision is subsequent in time to Lange v. Australian Broadcasting Corporation and refers to the decision in that case as well as to the provisions of the Convention and jurisprudence of the European Court of Human Rights. Having reviewed the law in a number of Commonwealth jurisdictions and also in the United States of America the court concluded on the issue of privilege and political statements as follows at p. 467 and 468 :
“14. Qualified privilege and political statements: conclusion
(a) Political statements may be protected by qualified privilege
Our consideration of the development of the law leads us to the following conclusions about the defence of qualified privilege as it applies to political statements which are published generally:
(1) The defence of qualified privilege may be available in respect of a statement which is published generally.
(2) The nature of New Zealand’s democracy means that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.
(3) In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.
(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.
(5) The width of the identified public concern justifies the extent of the publication.
(As appears from para. (3) above this judgment is limited to those elected or seeking election to Parliament.)”
In this case the Court of Appeal rejected the concept of reasonableness as applied by the Australian High Court in the Lange case.
Counsel refers to the recent decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 in which it recognised that there might be privilege in respect of the general communication of political information, which included not only information per se but extended to opinion and arguments concerning government or political matter that affect the people of the United Kingdom. It held that the questions of whether there is a duty and interest giving rise to qualified privilege falls to be determined on the basis of a number of factors, including inter alia, the seriousness of the allegation, the nature of the information , the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment was sought from the plaintiff, whether the article contained the gist of the plaintiff’s side of the story, the tone of the article and the circumstances of the publication. It was indicated that this list is not exhaustive and that the weight to be given to these and any other relevant factors will vary from case to case. The court indicated that the decision on whether, having regard to the admitted or proven facts, the publication was subject to qualified privilege is a matter for the judge.
Gately points out that from a reading of the speeches in this case the following points emerge:
“[T]here is unanimous rejection of a “generic” qualified privilege for “political speech” and in this regard the House of Lords rejected the approach of New York Times v. Sullivan. Lord Nichols stressed that reputation “forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.”
It was indicated that qualified privilege can only be defeated by the claimant establishing malice.
Counsel further submits that if one combines the Convention with the common law one must come to an altered view of the common law of defamation. Counsel submits that the law in Ireland properly viewed allows for qualified privilege for widely published statements on subjects of public interest, subject to restrictions, such as those imposed in Australia to deal with matters of reputation. It is submitted that on the basis of the law of fair comment it is not necessary for the defendant to prove the truth of all statements of fact upon which he relies.
It is submitted that the common law, properly understood, is to be seen in this or in a similar way. Counsel submits that on this understanding of the law there is no reason why the defendant should not defend the claim herein on the basis of the ordinary law of defamation.
The Attorney General submits that the Constitution, properly interpreted, may give rise to a wider form of entitlement to publish statements concerning matters of public concern than has hitherto generally been recognised. In light of the constitutionally recognised right of freedom of expression and freedom to communicate it is submitted that the limits placed on the expression or communication of material in relation to matters of public interest may legitimately differ from the limits to be placed on the expression or communication of other material. It is submitted that this distinction arises, inter alia, from the democratic nature of the State and the right to freedom of expression enshrined in the Constitution and is echoed in the jurisprudence of other jurisdictions and of the European Court of Human Rights. It is furthermore submitted that the limits to be placed on the expression or communication of statements of opinion may perhaps legitimately differ from the limits to be placed on expression or communication of factual statements. It is submitted that in a democratic society it is legitimate to place greater emphasis on the right to freely express one’s opinion than on the right freely to express or communicate statements of fact. Secondly, it is submitted that expressions of opinion are of necessity less damaging to the individual’s reputation than statements of fact, since they are perceived as being merely the opinion of the person that speaks them.
In respect of expressions of opinion on matters of public interest, the Attorney General submits that the appropriate constitutional balance does not protect statements made in bad faith or for an indirect purpose. It is submitted that insofar as expressions of opinion are concerned, it may not be constitutionally required of a defendant in every case to prove either the truth of the opinion or of the facts that underlie it. It is acknowledged that the rule applicable to statements of fact on matters of public interest does not arise in an acute form in the instant case, but it may nevertheless be the proper constitutional approach to provide that statements of fact on matters of public interest should be protected, where they are made in good faith or not for an indirect purpose and furthermore where reasonable attempts have been made to check on their truth and where they are made in circumstances that otherwise renders their publication reasonable.
The Attorney General submits that the right to freedom of expression is fundamental in a democratic society. One exception arises as a result of the constitutional protection afforded to Irish citizens under Article 40.3.2. It is submitted that the right to one’s good name must be balanced against the conflicting right in the context of the facts of each case. It is submitted that this is the process that should be followed in the instant case. It is submitted that it would not be appropriate for this court to assert that one particular constitutional right – the right to freedom of expression – should be considered and/ or declared to be paramount to another constitutional right. It is submitted that the correct method of dealing with this contention is that the Court should seek to balance both rights having due regard for the consequences which the exercise of these rights will have on the respective parties. It is submitted that the law of defamation as generally understood prior to the developments in judicial thinking in the United Kingdom, Australia and New Zealand together with the recent jurisprudence of the European Court of Human Rights may not adequately express the requirements and values of the Constitution and the Attorney General presents his observations in an attempt to suggest an appropriate test by which the respective rights of the parties to litigation such as this can be balanced.
In reply to the submissions made on behalf of the Attorney General and the plaintiffs, counsel for the defendant refers to the concession made on behalf of the Attorney General, and refers to the fact that in the light of the jurisprudence of the European Court of Human Rights the Court indicated that a “careful distinction needs to be made between facts and value judgments” and statements of opinion. Counsel submits that this is the thrust of Article 46.1.1 of the Constitution and it is submitted that harmony has to be achieved between the right freely to express opinions and the right to one’s good name.
Counsel submits that at common law the predominant aspect is the protection of reputation. Counsel submits that the common law approach is one of ‘strict liability’ and that the approach of the common law gives insufficient recognition to the right to freedom of expression or the right to make a value judgement.
Counsel submits that a reading of the Constitution shows that a distinction has to be drawn between an attack on one’s reputation and an unjust attack such that some fault must be established. Counsel submits that the freedom of expression recognised by the Constitution is not overshadowed by what he refers to as the ‘litigation chill factor’ by the fact that one has to vindicate this right solely by means of a defence to a claim for defamation. Counsel refers to the fact that the Attorney General’s submission amounts to saying that the defendant cannot rely upon the Constitution unless he can show that the existing law fails to vindicate his rights or amounts to an inadequate vindication of his right to freedom of expression.
Counsel submits that the remedy suggested by the Attorney General amounts to saying that the defendant must defend the case by pleading, albeit in a refashioned sense, qualified privilege or fair comment. The Attorney General submits that this Court should follow the Australian case of Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 and refashion in an unspecified way the defence of qualified privilege to allow a person to express freely his opinions.
Counsel refers to the judgment of Henchy J. in Hanrahan v. Merck, Sharp and Dohme [1988] ILRM 629 at p. 636 where he stated:
“So far as I am aware, the constitutional provisions relied on, have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are only entitled to intervene where there has been a failure to implement or, where the implementation relied upon is plainly inadequate, to effectuate the constitutional guarantee in question.”
Counsel submits that while the approach of the Attorney General is different to that of the defendants, their approach is no more revolutionary.
Counsel refers to W. v. Ireland [1997] 2 IR 141 and to portion of the judgment of Costello P. at p.167 where he said:
“The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties, to establish a new cause of action—indeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity were granted to the injured plaintiff in the example I have given, the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and, in considering the nature and scope of the duty, would decide whether the lorry driver had failed to take proper care for the plaintiff’s safety, whether the pedestrian failed to take care for his own safety, apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barred—in other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not, in a given case, adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation, as in O’Brien v. Keogh [1972] I.R. 144, then the law would be applied without the provision, which would be rendered invalid by the Constitution).”
It is submitted that the defendants have put the inadequacy of the law at the forefront and proposed, given the constitutional imperative, how the matter should be dealt with in this area. Counsel submits that there is an inadequacy with the remodelling proposed by the Attorney General.
Counsel submits that if one starts to refashion defences in the law of defamation one has to view the freedom of expression through the eyes of the law of tort. Counsel submits that the common law is premised on the existence of privileges. It is submitted that to put the defendant on the back foot is wrong. It is submitted that the defendants’ approach is to look at the right to freedom of expression through the lenses of the Constitution, to examine the right itself and then examine what limitations may be placed on the right. It is submitted that the common law of defamation puts ‘the cart before the horse’ and that this is not harmonious with the Constitution as it puts the protection of reputation first. It is submitted that in this way it fails to establish the necessary balance.
Counsel refers to the approach of the common law and refers to portion of the speech of Lord Nicholls in Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127 at p.192 where he said:
“Defamation and truth
The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person’s reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in M’Pherson v Daniels (1829) 10 B & C 263 at 272, 109 E.R. 448 at 451: ‘… the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess.’ Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.
The common law has long recognised the ‘chilling’ effect of this rigorous, reputation-protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.”
It is submitted that the premise upon which the common law operates is the opposite to that of the Constitution.
Counsel refers further to the speech of Lord Nicholls where he states at p.194:
“Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v Ward [1917] AC 309 at 334, [1916-17] All ER Rep 157 at p.170170, is much quoted:
‘… a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’
It is submitted by counsel that the House of Lords was wrestling with the system which starts from the wrong premise.
Dealing with the question of reputation Nicholls J. stated at p. 201 as follows:
“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.”
Counsel submits that a written constitution is alien to English law and as a result the thought process in approaching the law in England is radically different to that in Ireland. On this basis it is submitted that the decision in Reynolds v. Times Newspapers Ltd. is not an appropriate starting point. With regard to the decision of the Australian Courts in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 counsel refers to the fact that there is no express guarantee given to the freedom of expression. While the Court attempted to re-mould the common law, it is the common law which is the basic law of the land, albeit a Constitution Act has been enacted. It is submitted that the approach of the common law is to start with the premise that the statement complained of is a defamatory statement. It is submitted that the Australian approach is one of re-fashioning the law with regard to qualified privilege. It is submitted that the approach of the Australian court was based upon a reciprocity of interests.
In Lange, the Court added, at p. 570 of the report:
“The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which “the common convenience and welfare of society” now requires. Equally, the system of government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised. The “varying conditions of society” of which Cockburn C.J. spoke in Wason v Walter now evoke a broadening of the common law rules of qualified privilege.”
Counsel submits that the fact that the words published may be considered hurtful of the plaintiffs does not render same an abuse of the Constitutional position contended for. It is submitted that the defendant was entitled to opine in the manner done, which it is submitted is a fundamental aspect of his freedom of expression.
With regard to the submissions of counsel for the plaintiffs it is submitted that the words complained of amount to an opinion on English law. It is submitted that nothing has been asserted in the pleading that makes the words defamatory as a matter of law, unless it can be shown that the words were published in bad faith or unreasonably. It is submitted that letting the matter go to the jury in the present format is wrong in law. Counsel re-iterates that the words cannot be defamatory. Counsel submits that the issue is not a moot. It is submitted that it would be preposterous for the defendants to go through the entire trial procedure on the basis of a re-fashioning of the common law.
Counsel submits that as the words complained of cannot amount to an unjust attack on the basis of the pleading that the matter should not be allowed to go to the jury.
Counsel submits that the manner contended for of approaching the Constitution gives a harmonious approach to the balancing of the respective constitutional rights at issue, as opposed to an approach of re-modelling the common law such as done in Australia.
Conclusion:
This court must recognise the fact that the Constitution gives recognition and expression both to the freedom of expression and to the right to a person’s good name. It is accordingly necessary that the law should balance these rights in an appropriate manner. The necessity for such a balance has been amply stated in the judgments of Denham J. in O’Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 and of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359. In this regard it is appropriate to repeat what was stated by Barrington J. when he stated at p.404:
“Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.
…. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.”
I am satisfied that no essential difference exists between the provisions of the Convention and the provisions of Article 40.6.1o of the Constitution. What is relevant is how they should be interpreted. It is clear that the Convention does not provide as such for the protection of one’s reputation. However, Article 10 recognises that the protection given to freedom of expression may be curtailed and may be subject to restrictions as a prescribed by law and as are necessary in a democratic society for a variety of interests including the protection of the reputation or rights of others. It is, however, necessary to assess whether the common law of defamation as traditionally interpreted in this jurisdiction meets the requirements of the Constitution. In interpreting the Constitution this Court can have regard to the interpretation of the Convention insofar as it indicates how Article 40.6.1o may be interpreted.
It is clearly not the function of this Court to enter into the realm of policy formulation by suggesting reform of the law of defamation. In this regard I am influenced by the approach of Henchy J. in Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436 where he stated at p. 450:
“I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice.”
However, this court must assess the arguments put forward on behalf of the defendant and must assess whether it is necessary to conclude that the law of defamation as traditionally understood represents a violation of the right to freedom of expression enshrined in the Constitution and whether it should result in a fundamental re-appraisal of same or whether the law of defamation should be tempered to deal with the right to freedom of expression relied upon by the defendant.
I am not satisfied that the correct approach is to say that the right to freedom of expression should be viewed as paramount to the right to one’s reputation. I am satisfied that the right to freedom of expression may result in a situation where in the context of a democracy the position of the press and other organs of public opinion have to be respected and protected, having due regard to the right to one’s reputation. Accordingly, it is clear that the circumstances in which the right to freedom of expression is invoked may differ from one case to another and the relationship between that right and the right to one’s reputation may change depending on those circumstances.
Accordingly, I am satisfied that I must assess the right invoked by the defendant in this action on the basis of the assertion of that right advanced by him in his defence and must assess that situation and consider whether the law of defamation as traditionally understood represents a violation of that right and whether it should result in a fundamental re-statement of that law or a tempering of same.
The defendant in his defence has pleaded that the words published by him, the subject matter of the action against him, form part of an analysis of English law on the function of the Court of Appeal and that the analysis was largely made in relation to the ‘Birmingham Six.’ The defendant indicates that he engaged in research in writing the booklet and looked at transcripts of appeals heard in public and other source material. Clearly, the defendant advances his case on the basis that the booklet represents a work in which he asserts that he puts the case for an unbiased perspective on the trial of the Birmingham Six and other appeals. He is a Queen’s Counsel and the author of other works. In the prologue to the booklet the author indicates what he has attempted to address in the book itself, including the role of circumstantial evidence and the role of the Court of Appeal. He indicates that the motivation of the book has been the desire to redress the balance in the public perception of the criminal justice system. He states that the book explores the public perception about, and the professional failure to explain the function of, the Court of Appeal.
I am satisfied that I should assess the issue before this Court without determining the issues which remain to be determined before the court trying the substantive issues between the parties, but rather on the basis of the defendant’s assertions. I believe that I should assess his defence and determine whether it should permit him to raise a defence to the plaintiffs’ claims and whether the same is such as to preclude a valid claim being maintained by the plaintiffs. While the defendant asserts his entitlement to express his opinion as set forth in the book at issue, in exercise of his right to freedom of expression, the issue remains whether such an exercise precludes a valid claim for damages for defamation.
While the law of defamation at common law contains a “chill factor” such as may act as a disincentive to the freedom of expression, it is clear that any law which tempers the right to freedom of expression may have such an effect. It is also true that the common law may have the effect of putting a defendant ‘on the back foot’ such that a defendant may have to establish his right to raise a particular defence. Nevertheless, the defendant’s main contention is that the law as currently understood does not give sufficient recognition to the right to freedom of expression which he contends is paramount.
I am satisfied that I should only adopt the defendant’s contention as to how the law should be construed if the law of defamation cannot be construed in a more conventional manner such as to satisfy the requirements of the Constitution.
The jurisprudence of the European Court of Human Rights has largely been concerned with the right of freedom of expression of the press and the freedom to express opinions with regard to persons who are in public life. As indicated in the case of Litgens v. Austria, the limits of acceptable criticism are wider as regards politicians than for private individuals. The requirement of protecting the reputations of others has to be weighed against the interests of open discussion of political issues.
I am satisfied that in any given case it is necessary to establish whether the publication at issue is one which can be said to fall within the realms of freedom of expression this being one of the essential foundations of a democratic society. The necessity in a democratic society has to be assessed in the light of the restriction based on the protection of reputation and in this regard one must assess whether this is proportionate to the legitimate aim pursued.
In assessing whether it is appropriate to enlarge upon the traditional view of the law on defamation so as to permit a defendant such as the defendant in the case in question to write a booklet such as that at issue, I believe that guidance can be obtained from the decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 and in the decisions of the Australian and New Zealand courts referred to herein. I believe that the Reynolds case is of some assistance, being a persuasive authority especially insofar as it considered the common law in the light of the provisions of the European Convention of Human Rights. While the facts of that case were very different from the instant case, it does indicate that the law with regard to qualified privilege should be expanded to something close to a general public interest defence. It clearly recognises a wide interest of the public in receiving information from the press.
Insofar as the publication at issue in these proceedings largely comprises expressions of opinion, it appears that these can be addressed under the law as to fair comment, but that that law should be construed liberally to afford a proportionate right to freedom of expression of opinion, even when such expressions may give offence.
The approach of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 is instructive insofar as that court considered it necessary to change the common law rules to reflect the requirements of the Constitution. The Court stated that it was necessary that the common law rules of qualified privilege should be developed to reflect the requirements of the Constitution. The court stated as follows at p. 571:
“Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion — the giving and receiving of information — about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”
Dealing with the conditions for a plea of qualified privilege the Court stated:
“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. n85 But, apart from a few exceptional cases, n86 the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. n87 Because privileged occasions are ordinarily occasions of limited publication — more often than not occasions of publication to a single person — the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.
No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.
Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.”
Further it is to be noted that in New Zealand case of Lange v. Atkinson [1998] 3 N.Z.L.R. 424 the Court of Appeal held that qualified privilege applied to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament. The court held that there was no requirement of reasonable care for the defence of qualified privilege to be invoked. As indicated earlier in this judgment, in this regard there is a distinction between the approach of the courts in Australia and those in New Zealand.
While the requirements of the Constitution and of the Convention may require a similar approach to be taken in a like case, I consider it virtually impossible to define a right of a universal nature that will accommodate all cases where a contest exists between a claim of right to freedom of expression on the one hand and a right to the protection of one’s reputation on the other hand.
Were the Court to adopt the Australian approach to a case such as that seen in Lange v. Australian Broadcasting Commission, the issue would arise whether a concept of reasonableness should also be adopted.
With regard to whether the law should incorporate a concept of reasonableness, I believe that this is essentially a matter for legislative intervention if it is to be incorporated into the law in a manner akin to that in Australia, where it has had a legislative basis. In this regard I am conscious of the New Zealand decision of Lange v. Atkinson. This decision was decided in light of the New Zealand Bill of Rights which gives protection to the freedom of expression subject to limitation in the context of the protection of reputation. The Court of Appeal stated as follows, at pp. 468 to 470 of the report:
“(b) The protection of private reputation: the role of s 19
The emphasis just placed on the requirement that the statements relate to matters of proper public concern provides some protection for private rights and reputation — to return to that critical balancing factor. It is clear from s 5 of the Bill of Rights read with arts 19(3) and 17 of the covenant that the law must have regard to that matter. Section 19(1) of the Act also provides such protection. To repeat, it provides that the defence of qualified privilege fails if the plaintiff proves that, in publishing the matter:
“. . . the defendant was predominantly motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication” (Elias J at p 34).
The “Report of the (McKay) Committee on Defamation” (1977) paras 148-155, 195-201 and 269-278 on which the 1992 Act was based makes it clear that the proposed changes to the common law of malice were changes of terminology rather than substance, designed to avoid the difficulty for the jury of distinguishing between the popular and legal meanings of “malice”. The cases on the common law concept, it was expected, would remain relevant; see to the same effect Rt Hon Justice McKay, Laws NZ, Defamation, para 123, and Todd, The Law of Torts in New Zealand, para 16.11.3.
Lord Diplock’s speech in Horrocks v Lowe is generally accepted as the leading authority. He stated at pp 149-150 three propositions relevant to the “ill will” part of s 19. The first and especially the second provide some protection to reputation:
1. “If it be proved that [the defendant] did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.”
2. “If [the defendant] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.”
3. “But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men.”
So far as the “improper advantage” element of s 19 is concerned, Lord Diplock said this at p 150:
“Even a positive belief in the truth of what is published on a privileged occasion — which is presumed unless the contrary is proved — may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.”
(c) The reasonableness of the defendant’s conduct
Lord Diplock’s propositions 2 and 3 above are relevant to the question, touched on earlier in the discussion of the Australian Lange case, whether reasonable care or conduct on the part of the defendant is a part of the law of qualified privilege. He makes it plain that he does not consider that it is. While indifference to the truth defeats the privilege, carelessness does not. This Court has similarly said that negligence has no role in the law of defamation (except for damages): Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at pp 155-157, Balfour v Attorney General [1991] 1 NZLR 519 at p 529 and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at pp 298-299, 309 and 319. This is not an action brought in negligence as was Spring v Guardian Assurance Plc [1995] 2 AC 296 where Lord Woolf affirmed at p 350 that “Negligence has always been an irrelevant consideration (I am not referring to quantum of damages) and it will remain irrelevant in an action for defamation”.
Our review of the law as it has developed over the last two centuries or more confirms us in that conclusion. In particular neither the cases nor the legislation incorporate any requirement of reasonable care into the defence of qualified privilege. The very section which gives statutory protection by reference to the common law makes no reference to a duty of care and at the same time it saves the common law. The basis of qualified privilege is that the recipient has a legitimate interest to receive information assumed to be false. How can that interest differ simply because the author has failed to take care to ensure that the information is true? Next, any such reasonableness requirement would essentially make the statutory restatement of malice redundant.
As well, the introduction of a requirement of care in respect of political statements would raise the question whether it should not also apply in all other areas — with a consequent huge change in the balance of the law against freedom of expression in an area of law where the balance has been carefully and methodically worked out over a long period. And if instead a line is to be drawn between the present category of case and others, which we would doubt, principle might suggest that it would be drawn so as to advantage and not disadvantage political statements, given their importance.”
Proceeding to the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, I believe that it is appropriate to quote certain passages from the speech of Lord Nicholls. At p. 201:
“The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff’s ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a ‘scoop’, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.”
Dealing with the approach of the Court of Appeal in that case, Lord Nicholls continued as follows at p. 202:
“As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may ‘chill’ the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection.”
At pp. 204 and 205 Lord Nicholls states his conclusion in principle to the matters discussed when he stated as follows:
“Conclusion
My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop ‘political information’ as a new ‘subject matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.”
In considering the various authorities open to this Court I am persuaded that the flexible approach represented by the decision of the House of Lords in Reynolds v. Times Newspapers Ltd is the most appropriate way of approaching the problems in the instant case, in the absence of a clear legislative framework. It is clear that in the context of Ireland being a democratic state, clear recognition has to be given to the right to freedom of expression. I believe that this right should not be undermined by the provisions of the Constitution relating to the protection of one’s reputation. It is clear that the rights have to be construed on a harmonious basis. Nevertheless, it is clear that in certain cases, in the context of the democratic nature of the State, primacy may have to be given to freedom of expression. The approach adopted by the House of Lords has the merit of enabling the law to be developed on a case by case basis having regard to the requirements of the Constitution and the Convention which may inform the court in its approach to the interpretation of the Constitution. One must proceed on the assumption that the courts in addressing individual cases will have regard to the circumstances of each case and the nature of the rights pleaded by the parties and will be able to assess whether the right to freedom of expression contended for in any case is such that the defendant may rely upon a plea of privilege or fair comment having regard to the evidence in any given case. I am fully conscious of the ‘chill factor’ referred to in the speech of Lord Nicholls and in particular I agree with his observation where he said:
“The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press.”
Insofar as judges are familiar with construing the law in light of the Constitution, and insofar as the decision whether to allow defences, including that of fair comment or privilege to go to a jury in any given case is one that is vested in the judge conducting the trial, I am confident that a judge can adequately deal with the requirements of the Constitution in reaching any such decision and, as circumstances ordain, in charging a jury in any particular case. It is for this reason that I believe that the flexible approach adopted in Reynolds v. Times Newspapers Ltd. is the best way in which the Courts, in the absence of legislative reform in this area, can protect the constitutional rights of parties coming before the Court where the rights such as those at issue in these proceedings are at issue.
In conclusion, I believe that I must rule against the defendant on the issue insofar as the same was formulated. Nevertheless, I am satisfied that the defendant has raised issues of particular importance on the trial of this issue, which have not been fully addressed previously. However, I believe that the issues raised on the trial of the issue before me are such that the defendant should be permitted to amend his defence in light of the ruling of this Court, with liberty to the plaintiff to plead to any such amended defence. I will hear counsel in relation to any time that may be required for such amended pleading.
Travers -v- Sunday Newspapers Ltd
[2012] IEHC 185
Judgment of Mr. Justice Hedigan delivered the 15th day of May 2012
1. The plaintiff resides at 177, Ardilaun, Portmamock, Co. Dublin. The defendant is a limited liability company, having it’s registered office at 5th Floor, Independent House, 27-31 Talbot Street, Dublin 1.
2. The defendant seeks the following relief:-
1. An Order pursuant to section 14(1) of the Defamation Act 2009 that the publication by the defendant on 31”January 2010 which is the subject matter of these proceedings is not reasonably capable of bearing the following imputations contended for by the plaintiff:-
(i) The imputation contended for at Paragraph 7 (i) of the Statement of Claim.
(ii) The imputation contended for at Paragraph 7 (ii) of the Statement of Claim.
(iii) The imputation contended for at Paragraph 7 (v) of the Statement of Claim.
2. An Order pursuant to section 14(2) b of the Defamation Act 2009, striking out paragraphs 7(i), 7(ii) and 7 (v) of the Statement of Claim, and dismissing the Plaintiffs claim insofar as it relates to those paragraphs, and such further or consequential orders as are necessary.
Background Facts
3.1 In the substantive proceedings, the plaintiff seeks inter alia damages for defamation in respect of an article published by the defendant on the 1st January 2010, under the headline “€7.6m tiger raid was nothing to do with me”. The proceedings were commenced by way of plenary summons issued on 12th March 2010. The statement of claim was delivered on the 12th May 2010. A full defence was delivered by the defendant on the 13th June 2011. At paragraph J of the defence, it is pleaded inter alia that the words and photographs published by the defendant do not bear the meanings set out at paragraph 7 of the statement of claim, save those pleaded at paragraph 7 (iii) and 7 (iv). At paragraph 4 of the defence, it is pleaded inter alia that the material published by the defendant is true in substance and in fact but in its natural and ordinary meanings, and not the meanings pleaded by the plaintiff.
The within application is one brought by the Defendant pursuant to s. 14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant in respect of which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising there from.
3.2 Section 14 of the Defamation Act 2009 provides as follows:-
“14. (1) The court, in a defamation action, may give a ruling:-
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.
(2) Where a court rules under subsection (1) that:-
(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.
(3) An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.
(4) An application under this section may be brought at any time after the bringing of the defamation action concerned including during the course of the trial of the action.”
3.3 The plaintiffs statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the impugned publication meant and was understood to mean that:
(1) The plaintiff was, in some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State.
(2) The plaintiff had in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad.
(3) The plaintiff was, and remains, suspended from his duties at Bank of Ireland, his place of employment, pending the outcome of a Garda or criminal investigation.
(4) The plaintiff had not satisfied his employers that he was not a member of the group or party who had carried out the said bank heist.
(5) That the plaintiff had some inside information on the said bank heist which he had not disclosed to persons in authority and/or to An Garda Siochana.
The defendant seeks a ruling and an appropriate order pursuant to s.l4(l)(a) of the Defamation Act 2009, that the publication by the Defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7 (i), 7 (ii) and 7 (v) of the statement of claim.
Defendants Submissions
4.1 The defendant submits that in an application such as the present, the question of whether a publication is capable of bearing a particular meaning is a question of law for the judge. The procedure set out in section 14 of the Defamation Act 2009 reflects a practice that had existed both in this jurisdiction and in England and Wales, whereby it is for the judge to lay down the limits of the range of the possible defamatory meanings of which the words are capable, and for the jury to determine the actual meaning of the words within that permissible range. It is stated in Gatley on Libel and Slander 11th Edition, at p.103 that:-
“In ruling on meaning, the court is not determining the actual meaning of the words but delimiting the outside boundaries of the possible range of meanings and setting the “ground rules” for the trial.”
The defendant submits that in the present application, the Court is fully entitled to delimit the range of meanings which the words are reasonably capable of bearing.
4.2 In Duncan and Neill on Defamation, 3rd Edition, at p.33 the authors state inter alia that:-
“The natural and ordinary meaning of the words is the meaning ascribed to the words by the court as the meaning the words would convey to the notional reasonable reader. Where there is a possible range of meanings, a single or ‘right’ meaning is selected as the natural and ordinary meaning”.
In Jeynes v. News Magazines Limited [2008] EW CA Civ 130 The Court of Appeal in England and Wales outlined what is meant by the so-called “reasonable reader”, Clarke M.R. stated at paragraph 14:-
“The legal principles relevant to meaning … may be summarised in this way: (I) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’ …. (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
4.3 A mere reference to a person being under suspicion does not amount to an inference of guilt. In Lowry v Smyth, (Unreported), High Court, 1Oth February 2012, Kearns P. refused an application for summary judgment by the plaintiff under the 2009 Act, and in so doing, referred to the meanings of the words complained of as follows:-
“In relation to the other matter complained of, I certainly believe it is open to the defendant to argue that to report the mere fact that a tribunal is investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license is not necessarily defamatory per se. Two cases amply bear out this proposition. Both were cited to this court in Griffin v. Sunday Newspapers [2011] IEHC 331, in which the defendant newspaper sought an order under s.14 (1)(a) of the Defamation Act 2009 to narrow down the scope of the plaintiffs claim on the basis that certain imputations ascribed to an article were not reasonably capable of bearing the defamatory meanings contended for by the plaintiff.
That case concerned a newspaper article which stated that there was a military investigation underway into allegations that members of the Army Rangers Wing took leave of absence to give weapons training to police in the Seychelles. The issue which the court had to consider was whether a statement that an inquiry or investigation was under way was of itself indicative of wrongdoing and of having the defamatory meanings contended for by the plaintiff.
In the course of argument, reference was made to two cases which provided considerable assistance.
In Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, the facts were that the City Fraud Squad in London were inquiring into the affairs of a limited company of which Mr. Lewis was chairman. Both he and the company of which he was chairman issued writs against the newspapers who had issued front-page stories to that effect. It was alleged that the words were defamatory in their ordinary and natural meaning and were meant and were understood to mean that the plaintiffs had been guilty of fraud or dishonesty. In the course of his judgment Lord Reid stated as follows in relation to reports about ongoing investigations (at p. 259):-
“What an ordinary man, not avid for scandal, would read into the words ‘complained of must be a matter of impression. I can only say that 1 do not think he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning.”
A similar view was expressed by Lord Justice Hirst in Mapp v. Newsgroup Newspapers Ltd. [1998] QB 520, to emphasize that the reference to an investigation could not reasonably be read as imputing guilt to the plaintiffs as contrasted with reasonable suspicion of guilt. In that case the court had to consider whether the reference to the suicide of a police officer in conjunction with a report of the existence of an investigation was such as to transform a reasonable suspicion of guilt into something more.
In Griffin, this Court endorsed the approach taken by Lord Reid in Lewis and by Hirst L.J. in Mapp to hold that, while the impugned article contained many statements to the effect that allegations had been raised, there was no suggestion that these allegations had been proven or that findings had been made adverse to the plaintiff.”
It is clear therefore that a mere reference to a person being under suspicion does not amount to an or inference of guilt.
4.4 The defendant submits that it now well settled law that it is unreasonable to infer guilt from a statement of suspicion. At paragraph 7 (i) of the plaintiff’s statement of claim, the meaning being contended for by the plaintiff is that the plaintiff has criminal responsibility for the robbery. The defendant submits that this contended meaning cannot arise, for a number of reasons but not least since it essentially involves the plaintiff in arguing that the publication excludes the possibility of his being entirely innocent. The headline sets out the plaintiff’s position that the robbery was nothing to do with him. The words above the headline state that he has been released but that the investigation is ongoing. In the third paragraph of the article it is stated that the plaintiff is denying any involvement in the tiger kidnap, and that the plaintiff was “forced” to stuff four laundry bags with money. Further on in the article it is stated that he was released without charge from Garda custody. It is further stated that the defendant “…understands that [the plaintiff] insists that he had nothing to do with the heist”, that the plaintiff was “forced” to drive to the Bank, that the plaintiff reported the matter to Gardai, that on the morning of the raid he arrived at the Bank distraught, and a caption refers to “…the house where [the plaintiff] was kidnapped”. In light of these examples the defendant submits that the hypothetical reasonable reader would not take the meaning contended for by the plaintiff from the article.
Plaintiffs Submissions
5.1 The plaintiff submits that the defendant is not entitled to an Order pursuant to section 14(1) (a) of the Defamation Act, 2009 as sought in the Notice of Motion. The question for determination is whether or not the words are reasonably capable of carrying the meanings contended for by the plaintiff. The plaintiff relies on Gatley on Libel and Slander, 11th ed, 2008, the learned author states as follows at page 101:-.
“Although it has been said that the question as to meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a Jaw that governs the everyday life and actions of all levels of persons in the community yet, only in a very simple case are words capable of conveying a single, clear, indisputable imputation…..Logically anterior, therefore, to the question of whether the words are capable of being defamatory in law is the question of what meaning or meanings the words are reasonably capable of bearing. Where an action for defamation goes to full trial it may be before a jury and the jury is then the arbiter, subject to the limited powers of the court of appeal of what the words do convey and whether they are defamatory. In this sense, therefore, the meaning of words is a question of fact. But it is for the judge to rule whether the words contended for are capable of bearing the meanings contended for and if so whether any of those meanings is capable in law of being defamatory. The judge’s function in this regard is no more and no less than to pre-empt perversity.”
5.2 Meaning is something peculiarly for the jury and neither party is allowed to adduce evidence of meaning. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 is that a trial judge should not withdraw a question of meaning from the jury unless it is satisfied that it would be “wholly unreasonable” to leave that question to the jury. Quigley concerned a well known actor who took a libel action against the publisher of a magazine article. The actor contended that the ordinary meaning of certain words in the article was that he did not work in Ireland and that he chose to work and live in London because the rewards and opportunities there were better than in Ireland. The plaintiff actor was successful before a jury and the publisher appealed. On appeal, the publisher submitted that the relevant words and their meaning as found by the jury were incapable of being defamatory because they only amounted to a statement that the plaintiff had left Ireland to improve his financial position. In disallowing the appeal, the Supreme Court per Walsh J. stated:-
“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libelous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community…”
5.3 In Magee v. MGN Limited [2003] IEHC 87 Mc Kechnie J. referred to the “unique” role of the jury in determining questions of meaning. That case involved an individual who had been convicted of the Brighton bombing. The plaintiff claimed to have been defamed by an assertion fifteen years later inter alia that he was not a supporter of the peace process in Northern Ireland. That case involved a different application than the application the subject matter of the motion before the Court. It was an application to strike out the plaintiff’s claim as frivolous and vexatious. McKechnie J. considered that he could not conclude at that stage of the proceedings that the plaintiff’s proceedings must fail. He stated as follows at paragraph 35:-
“…it seems to me that I cannot say at this stage of the within proceedings that the plaintiffs claim must fail. In other words that it cannot possibly succeed. In other words that before a properly representative jury he could not even argue that the imputations as alleged were defamatory of him. I cannot agree that this is necessarily so. In such altered circumstances I believe that the existence or not, as the case may be, of damage to reputation, is at least capable of argument. Such a finding, one way or the other, as Griffin J. said in Barrett v. Independent Newspaper Ltd. [1986] I.R. 13 at p. 28, is to a considerable extent, “a matter of opinion” as distinct from judgments as to actual fact and. Furthermore in my view, there is no doubt but that society’s opinion is capable in a way recognised by law of changing from time to time either to lead or to respond to events or other social changes. In my opinion, therefore given this crucial role which a jury plays on an issue such as this in a libel action, I cannot. as previously stated, conclude with certainty that right thinking members of society generally could not, despite the plaintiffs past, hold in his favor in the present proceedings.”
5.4 The plaintiff submits that the article meant that he was:-
(i) “In some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State”.
(ii) That he “in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad”
…
(v) That he “had some inside information on the bank heist which he had not disclosed to persons in authority and/or to An Garda Síochána”.
The article includes a photograph of the plaintiff standing in front of a Ferrari and it includes captions such as “high life”. The plaintiff submits that this Court should not remove from the jury, decisions about the overall meaning of the article. This is particularly so when it has to be conceded that the average reader is drawn to large colour photographs and headlines more than to the small text of the article. It is further submitted that because the article is reasonably capable of bearing the meanings contended for by the plaintiff, the defendant’s application must fail.
Decision of Court
6.1 The within application is one brought by the defendant pursuant to s.14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant on which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising.
6.2 Section 14 of the Defamation Act 2009 provides as follows:
“14. (1)The court, in a defamation action, may give a ruling:-
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) where the court rules that that statement is reasonably capable of bearing that imputation as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.
(2) Where a court rules under subsection (1) that:-
(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.
(3) An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.
(4) An application under this section may be brought at any time after the bringing ofthe defamation action concerned including during the course of the trial of the action.”
6.3 The plaintiff’s statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the publication meant that:-
(i) The plaintiff was a willing participant in the carrying out of the bank heist.
(ii) The plaintiff had gained financially from the heist to such an extent as to enable him to enjoy expensive cars and holidays abroad.
(iii) The plaintiff remains suspended from his duties at Bank of Ireland.
(iv) The plaintiff had not satisfied his employers that he was not a member of the group who had carried out the heist.
(v) That the plaintiff had some inside information on the bank heist.
The defendant seeks a ruling and an appropriate order pursuant to s. 14 (1)(a) of the Defamation Act 2009, that the publication by the defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7(i) 7 (ii) 7(v) of the statement of claim.
6.4 It is well established that a judge should not withdraw a question of meaning from the jury unless satisfied that it would be “wholly unreasonable” to leave that question to the jury. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 where Walsh J. stated as follows at 272:-
“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libelous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community…”
6.5 In determining an application such as this it seems to me that the same principles apply. I accept therefore that the Court must take into account the “unique” role of the jury in determining questions of meaning see Magee v. MGN Limited [2003]1EHC 87 cited above.
6.6 Written words must be construed in the context in which they appear. The hypothetical reasonable man that is referred to in Jeynes v. News Magazines Limited (cited above) whilst not overly suspicious can read between the lines and determine what is actually meant by the article. There may well be phrases present that are attributable to the plaintiff which claim his innocence, however it seems to me that the fact that the article sets out the plaintiffs denial of involvement in the bank robbery does not preclude the plaintiff from alleging the meanings for which he contends. The article includes captions such as “high life” beside a photograph of the plaintiff standing in front of a ferrari. It is plain that some meaning must be adduced by the reasonable reader from the presence of such a photograph. The high life ferrari style is not normally associated with the life style of a bank clerk. By juxtaposing the photo with the text, the defendant has it seems to me very arguably suggested the plaintiff is not to be believed. Whether this is so is a matter for the jury. It seems to me that the article when viewed objectively from the viewpoint of the hypothetical “reasonable reader” is capable of giving rise to the meanings contended for at paragraphs 7(i) 7(ii) and 7(v) of the statement of claim. I am satisfied therefore that it would be unfairly prejudicial to the plaintiff to prevent the pleas contended for at paragraphs 7(i), 7(ii) and 7(v) of the statement of claim from being put before the jury at the trial of the action. In light of these findings the defendant’s application is refused.
Corrigan -v- Kevin P Kilrane and Company Solicitors
[2017] IEHC 488
JUDGMENT of Mr. Justice Robert Eagar delivered on the 26th day of July, 2017
…..
Decision
55. Section 6(2) of the Defamation Act 2009 states:-
“The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.”
56. There is no definition of defamation provided in legislation, however, Gatley, On Libel and Slander, 12th Edn. (2013) states as follows. ‘Defamatory’ implies a harm being caused to a person’s reputation, however:-
“there is no wholly satisfactory legal definition of the term. Three formulae have been particularly influential:-
(1) Would the imputation tend to lower the plaintiff in the estimation of right ` thinking members of society generally?
(2) Would the imputation tend to cause others to shun or avoid the claimant?
(3) Would the words tend to expose the claimant to “hatred, contempt or ridicule?”
57. Order 19, rule 28 of the Consolidated Superior Court Rules provides:-
“The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”
58. Section 34(2) of the Defamation Act 2009 provides:-
“The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.”
59. Section 14 of the Defamation Act 2009 states:-
“(1) The court, in a defamation action, may give a ruling—
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.
(2) Where a court rules under subsection (1) that—
(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.”
60. The court also has regard to the decision of McCauley v. Aer Lingus Ltd., Frank Feeney & Serena Wyse [2014] 3 I.R. 383. In the course of that judgment Hedigan J. stated:-
“For the purposes of considering whether to accede to an application based on O. 19, r. 28, the court must proceed on the basis that the statements of fact contained in the pleadings sought to be struck out are true and can be proved by the party.”
61. The plaintiff’s central allegation is that the email sent by the defendant’s carbon copied to the Supreme Court Office on the 25th November, 2015 is defamatory.
62. The court is satisfied that there is nothing in the email of Emma Brennan sent at 11:53 on the 25th of November, that is any way defamatory of the plaintiff. At its highest, the email could be described as terse. Correspondence between parties after a lengthy appeals process can understandably at times be terse.
63. The court is satisfied that the plaintiff may genuinely have believed what Mr. Butler had informed him about the books of appeal, but Ms. Brennan’s email did not suggest that he was dishonest in asserting that belief.
64. Legal practitioners and litigants commonly dispute who sent what document to whom in the context of litigation, particularly after waiting for three or more years for an appeal to be heard.
65. In this case, the appeal had been initiated as far back as 2nd of November, 2007 to the appeal hearing in January 2016, a period of nine years. In this Court’s view the email does not carry any imputation that one or other of the parties is a liar, is dishonest or unprofessional, it just implies there is a disagreement between the parties as to who is in possession of what documents. In her affidavit, Ms. Brennan suggests that the imputations as pleaded are unreasonable and hyperbolic and the court agrees with this characterisation of the claims in this case.
66. Further s. 18(2) of the Defamation Act 2009 says:-
“Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—
(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.”
67. It is clear that Ms. Cuddihy of the Supreme Court office had a duty to receive the information contained in the email, in circumstances where she had initiated the email correspondence. It is clear that Ms. Brennan must have believed that she had a corresponding duty to communicate the information to such person or persons.
68. Section 19(1) of the Defamation Act 2009 provides:-
“In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.”
69. The court is satisfied that the onus is on the plaintiff to prove that the defendant acted with malice, and the court is satisfied that the plaintiff must fail in this action.
Summary
(1) The decision of the court is that the words contained in the email and the email from Ms. Brennan to the plaintiff and carbon copied to the Supreme Court office did not contain any information which was false and that what was stated in the email was true.
(2) The court is satisfied that defence of qualified privilege is established by the defendant in relation to the statement which is claimed to be defamatory.
Decision
70. The court will dismiss the proceedings on the grounds that the statement of claim discloses no reasonable cause of action against the defendant. The court also will dismiss the proceedings on the grounds that pursuant to s. 34(2) of the Defamation Act 2009 that the statement in respect of which the action was brought in the email of the 25th of November, 2015 is not reasonably capable of being found to have a defamatory meaning.
71. The court also finds that pursuant to s. 18(2) of the Defamation Act 2009 the court finds that the statement was published to a person (namely Trish Cuddihy of the Supreme Court office) who had a duty to receive or interest in receiving the information contained in the statement and that the defendant had a corresponding duty to communicate or interest in communicating the information to such person or persons.
Gilchrist -v- Sunday Newspapers Ltd & ors Rogers -v- Sunday Newspapers Ltd & ors
[2017] IECA 190
T
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 21st day of June 2017
1. These appeals concern the jurisdiction of the Court to strike out part of a plaintiff’s claim for defamation pursuant to its inherent jurisdiction upon the grounds that the pursuit of such a claim is an abuse of process. In particular the appellants seek to persuade the Court that it should follow the approach of the English courts and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time. Particular reliance is placed on the judgment of the English Court of Appeal in Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] QB 946 and explanation therein of the English Courts’ approach to striking out libel claims as being an abuse of process.
2. These appeals were heard at the same time as two appeals in relation to applications pursuant to s.14 of the Defamation Act, 2009 in 2013 defamation proceedings brought by the same plaintiffs against the same defendants in respect of which a separate judgment is being delivered by the Court today.
Background facts
3. For the purposes of these appeals it is sufficient to state that the plaintiff Mr. Gilchrist is a former member of An Garda Síochána who had attained the rank of Detective Inspector and was engaged by the force as an operative in the force’s witness protection programme. He retired from the force in 2008 with a certificate of exemplary service. The plaintiff Ms. Rogers is a psychotherapist who resides in England and provided professional services, as a psychotherapist to An Garda Síochána and in particular the witness protection programme. The plaintiffs are now married to each other.
4. The proceedings in which these appeals occur were commenced in May, 2014. Each plenary summons claims damages for defamation in respect of two sets of statements. First, statements allegedly published by the third named defendant (whilst carrying out her employment duties for the first defendant) on 28th March, 2014 to Mr. John O’Brien, a retired Detective Chief Superintendent. Second, damages for defamation in respect of statements contained in a newspaper article published by the first named defendant in the Sunday World on 30th March, 2014. There is a further claim for damages for defamation in relation to further online publication in respect of the statements in the said article.
5. Following an exchange of pleadings the defendants brought a motion in each proceeding in the High Court seeking:
1. An order pursuant to the inherent jurisdiction of the Court striking out the paragraphs in each of the plaintiffs’ statements of claim relating to the statements published to Mr. O’Brien on 28th March, 2014 on the grounds that the pursuit of the claims in those paragraphs amounts to an abuse of process.
2. Further or in the alternative, an order pursuant to the provisions of O. 19, r. 27 of the Rules of the Superior Courts striking out the same paragraphs in each statement of claim on the grounds that the said paragraphs contain pleas which are unnecessary.
6. The two motions were heard in the High Court by MacEochaidh J. at the same time as the two motions in the 2013 proceedings seeking orders pursuant to s. 14 of the Defamation Act, 2009.
7. In a short ex tempore judgment delivered on 15th March, 2016, MacEochaidh J. dismissed the application to strike out the claims in respect of the publication on 28th March, 2014. His decision was that the pursuit of those claims in the proceedings was not an abuse of process. It is not clear from the judgment whether the application pursuant to O. 19, r. 27 was pursued in the High Court. In any event it is not an issue relied upon in the notice of appeal and therefore does not require to be considered on the appeal.
8. The trial judge dismissed the applications essentially for two reasons. Firstly, having set out briefly his understanding of the abuse of process jurisdiction explained in Jameel he stated “I am not of the view that the Jameel authority is good law in Ireland”. Notwithstanding that view he continued to consider, if he was wrong in that view, whether the defendants had discharged the burden of persuading the Court in accordance with the approach in Jameel that the pleas in question should be struck out and concluded that they had not done so. In the course of doing so he stated:-
“I take the strong view that if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only, they are entitled to their day in Court in respect of that matter.”
9. The appellants in their grounds of appeal and submissions contend that the High Court judge erred in refusing to strike out the relevant paragraphs in the statements of claim as an abuse of process principally by reference to the line of authority in Jameel. They also rely upon the judgment in McSorley v. O’Mahony (Unreported, High Court, Costello P., 6th November, 1996) in support of following the Jameel approach in this jurisdiction. They seek an order from this Court striking out the relevant paragraphs in each statement of claim “on the grounds that the inclusion of the said paragraphs amounts to an abuse of process.” They do so in a context where they make no objection to the continuation of the remainder of the claims in relation to the article published in the Sunday World and on the internet.
10. The parties informed the Court at the hearing that there is no written judgment in this jurisdiction on what they term the “Jameel point”.
Discussion and decision
11. The claims brought by the plaintiffs are for damages for the alleged commission of torts of defamation as now defined in s. 6 of the Defamation Act 2009. Section 6(2), (4) and (5) provide:
“(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.
…
(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—
(a) it was not intended that the statement would be published to the second-mentioned person, and
(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.
(5) The tort of defamation is actionable without proof of special damage.”
12. It is not in dispute that each of the plaintiffs has pleaded in the relevant paragraphs in the statements of claim the making of allegedly defamatory statements by the third defendant to Mr. O’Brien on 28th March, 2014. The defences admit the making of the statements and plead (1) that the words complained of were true in substance and in fact, (2) deny certain of the meanings pleaded and (3) that they were published on an occasion of qualified privilege both at common law and pursuant to s. 18 of the 2009 Act.
13. Accordingly, it is not in dispute that each plaintiff has pleaded a claim for damages for what arguably constitutes the tort of defamation within the meaning of the 2009 Act in relation to the statements made on 28th March, 2014. The have also pleaded claims in relation to the alleged defamation by the publication of the article in the Sunday World 30th March 2014 and on the internet.
14. The trial judge in his short reasoning in relation to his rejection of the approach in Jameel referred to the constitutional right of access to the courts. That constitutional right of access to the courts is of course not an absolute right and it is well established that it may be controlled by the courts inter alia in reliance upon its inherent jurisdiction to strike out or stay proceedings which constitute an abuse of process.
15. The first question is what is the “Jameel point” or as sometimes termed “Jameel abuse of process”. It is perhaps best understood by considering the conclusion reached at para. 69 of the judgment of the Court, delivered by Lord Philips of Worth Matravers MR, in Jameel:-
“69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”
16. That conclusion must be understood firstly in the context of the facts of Jameel in which a claim was made in respect of an article posted by the defendant on web servers in New Jersey. The only publication in England was a publication to five persons who had accessed the article, three of whom were connected with the plaintiff. The defendant Dow Jones did not object to the jurisdiction of the English courts. .
17. Notwithstanding that the decision in Jameel may be considered to have been influenced by a view that no substantial tort was committed in England, it appears clear from certain of the reasoning of the Court that the pursuit of a libel claim will be considered to be an abuse of process in England where the probable costs which may be incurred in the proceedings and the use of judicial and court resources will be disproportionate to the damages and vindication which may be achieved by the plaintiff if successful. This appears from the explanations given earlier in the judgment in Jameel at paras. 55 and 57:-
“55. There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so…
…
57. In Schellenberg v British Broadcasting Corpn [2000] EMLR 296 the claimant had settled defamation actions against the “Guardian” and the “Sunday Times” on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC. Eady J struck this out as an abuse of process. He rejected the submission that he should not do so as this would deprive the claimant of his “constitutional right” to trial by jury. He said, at p 318:
“I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile. ”
He added that the overriding objective’s requirement for proportionality meant that he was bound to ask whether “the game is worth the candle”. He concluded, at p 319:
“I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”
18. I understand from the above that the “Jameel point” is the recognition and exercise by English courts of an inherent jurisdiction to strike out as an abuse of process a libel (or a defamation) claim which may yield a plaintiff some benefit but where the probable damage to the defendants in terms of costs and the impact on court resources will be disproportionate to the probable benefit for the plaintiff in succeeding. It has subsequently been applied in England in this way. (See inter alia Noorani v. Calver [2009] EWHC 561 (QB) and Cammish v. Hughes [2012] EWCA Civ 1655 per Arden L.J.)
19. The overriding objective of the English Civil Procedural Rules (CPR) referred to by Lord Phillips at para. 55 of Jameel and by Eady J. in Schellenberg set out above is relevant to an understanding of the jurisdiction now exercised in England. Rule 1.1(1) provides that the CPR is a new procedural code with “ the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. Further Rules 1.1(2)(b)(c) &(e) provide that:-
“(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable-
. . .
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
…
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
20. Further, insofar as the obligations on the courts pursuant to s. 6 of the Human Rights Act 1998 is relied upon by Lord Phillips it is relevant to observe that there is no similar provision in the European Convention on Human Rights Act 2003 in this jurisdiction. The courts are expressly excluded from the definition of organs of the State for the purposes of the 2003 Act. Further no submission was pursued before us in reliance on the European Convention on Human Rights as implemented by the 2003 Act. Thus, it would appear that neither of the recent developments referred to by Lord Phillips in Jameel expressly apply in this jurisdiction.
21. However, the question is whether, in accordance with the principles applied in this jurisdiction, it would be an abuse of process for a plaintiff to pursue a claim for defamation where as a matter of probability if he succeeds he will obtain some benefit but where the probable benefit appears disproportionate to the costs for the parties of litigating the claim and the impact on court resources.
22. The inherent jurisdiction of the Irish Courts to restrict the constitutional right of access to the Court by striking out or placing a stay on a claim which is an abuse of process is, as already stated, well established. The plaintiffs drew attention to the summary of the established bases for striking out proceedings as an abuse of process in Hogan and White, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin, 2003) at para. 7.3.138:-
“The right to litigate must be read subject to the judicial power to strike out an action so as to prevent an abuse of judicial process. If it is established that proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail, the court has an inherent jurisdiction, in addition to a jurisdiction conferred by the Rules of the Superior Courts, to stay the action, though this jurisdiction must be exercised sparingly and only in clear cases. The court may also strike out an action if it has been taken for a purpose that the law does not recognise as a legitimate use of the remedy sought [such as bringing proceedings to gain an advantage over a competitor] or if there has been an inordinate and inexcusable delay in pursuing a claim that prejudices the defendant and makes the conduct of a fair trial impossible. Moreover both the High and Supreme Courts may restrain a person from instituting legal proceedings without first obtaining the consent of the respective court where this is necessary in order to prevent an abuse of court processes or the pursuit of vexatious litigation.”
23. The appellants relied upon a test as to what might constitute an abuse of process enunciated by Costello P. in McSorley v. O’Mahony:
“It is an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff.”
24. On the facts of that case prior to stating the above Costello P. had concluded that the action should be stayed on the grounds both that it was “vexatious and an abuse of the Court’s process”. He analysed two causes of action one of which by reasons of events which post dated the commencement of the proceedings no longer existed and the second from which he concluded the plaintiff could obtain “no benefit from maintaining these proceedings for the purpose of obtaining an award against the defendant”. That conclusion was by reason of an award of damages already made against another defendant, Cork Corporation in the same proceedings which the trial judge observed was not insolvent.
25. I draw attention to the fact that the test stated by Costello P. is of proceedings which can confer “no benefit” or “no gain” on the plaintiff.
26. This same test was considered by Hardiman J. in the Supreme Court in Grant v. Roche Products (Ireland) [2008] 4 IR 679 in a judgment with which Murray C.J. and Geoghegan J. concurred. The claim in those proceedings was for damages for an alleged wrongful death pursuant to Part IV of the Civil Liability Act 1961. The defendants made an open offer without admission of liability for the maximum amount payable pursuant to s. 49 of the 1961 Act and the funeral expenses and costs but without admission of liability. They then sought to have the proceedings struck out upon the basis that their continuation would be an abuse of the process of the Court.
27. Hardiman J., in considering whether or not the continuation of the claim in respect of the alleged wrongful death of the deceased would constitute an abuse of process, referred firstly to what he termed “the classic and long-established definition of an abuse of process” as being that set out by Isaacs J. in Varawa v. Howard Smith Company Ltd. (1911) 13 C.L.R. 35 at p. 91:-
“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, they are regarded as an abuse of process for this purpose …”
28. He then observed that the Varawa test was not relied upon by the defendants as it was conceded that the plaintiff had no ulterior or improper purpose in pursuing the proceedings (as is the position in these appeals) but rather that they submitted that they could meet the less onerous test derived from the judgment of Costello P. in McSorley in respect of which Hardiman J. stated:-
“This is the test that there is quite simply ‘no tangible benefit’ which the plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In another sense they are moot by reason of this lack of tangible benefit.”
29. It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase “no tangible benefit”, I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean, the proceedings would be pointless or moot. That is the threshold which a defendant must meet.
30. The issue must, however, be decided by reference to the plaintiff’s claim alone. It is only where a defendant can persuade a court that the plaintiff can obtain no benefit or no tangible benefit (in the sense used by Hardiman J.) from the proceedings that they may be struck out as an abuse of process. Essentially it is because the proceedings are then pointless and, in those circumstances, it would be an abuse of process to permit them to proceed and in doing so cause detriment to the defendant or abuse the use of court time.
31. What does not appear permissible on an application to strike out proceedings as an abuse of process is to conduct what is referred to in Mullis and Parkes, Gatley on Libel and Slander, 12th Ed., (London, 2015) at para. 30.48 in relation to the Jameel abuse of process as “in essence a cost-benefit calculation” between the potential probable benefit to the plaintiff if successful and probable costs and use of court time if the proceedings continue and determine whether it is proportionate to permit the proceedings to continue.
32. This conclusion is informed by the fact that the jurisdiction to strike out proceedings or a claim without a hearing on the merits is one which limits the constitutional right of access to the Courts. Also, it is of course a jurisdiction which must be exercised sparingly and only in clear cases: Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425.
33. Accordingly, I have concluded that the trial judge was correct in deciding that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process.
34. There is no other basis upon which the claims in question may be struck out as an abuse of process. The applications, as already stated were not to strike out the entire defamation proceedings brought by each plaintiff. Rather they were to strike out only one distinct claim in each relating to the defamation alleged by the publication to Mr. O’Brien on 28th March 2014. Much emphasis was placed by the appellants upon the fact that this was a publication to one person only and that he was a person, it was to be inferred, sympathetic to the plaintiffs as they were made aware of the publication to him. The fact that it was a publication to one person only, does not detract from it potentially being a commission of the tort of defamation as defined by s. 6(2) of the Defamation Act 2009 which expressly includes in its definition publication “to one or more than one person”. Section 6(5) of the 2009 Act also expressly provides that the tort of defamation is actionable without proof of special damage.
35. I consider the trial judge was correct when he concluded:-
“. . . if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only. . .”.
36. It is not suggested that any provision in the 2009 Act or any principle of the law of defamation precludes the plaintiffs from pursuing claims for damages and to vindicate their good name in relation to the distinct torts alleged to have been committed by the publications on 28th March notwithstanding a similarity with the content of the statements in the articles published on 30th March 2014. Any restriction on a person’s rights to pursue each such claim is a matter for the Oireachtas.
37. The appellants have not established that these distinct claims in relation to the publications on 28th March will yield no benefit to the plaintiffs if successful. Accordingly it is not an abuse of process on the facts herein for the plaintiffs to pursue the claims pleaded in relation to the publications on 28th March 2014 together with the other claims in the proceedings.
38. Accordingly, I would dismiss the appeals.
John McAuley -v- Brenda Power & Anor
[2012] IEHC 174
JUDGMENT of Kearns P. delivered on the 27th day of April, 2012.
This is a defamation action brought by the plaintiff in respect of the publication of an article written by the first named defendant in the Sunday Times Newspaper in its edition dated 1st March, 2009. In the application presently before this Court the defendants seek by motion to have the plaintiffs claim struck out or dismissed, either under O. 19 of the Rules of the Superior Courts or under the inherent jurisdiction of the court or on the basis that the words published are not reasonably capable of having the defamatory meanings ascribed to them in the statement of claim.
Order 19, rule 28 provides:-
“The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”
This case is one which pre-dates the commencement of the Defamation Act 2009 which contains a provision in the following terms:-
“14.- (1) The court, in a defamation action, may give a ruling-
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that the statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.
(2) Where a court rules under subsection (1) that-
(a) The statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) That any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action insofar only as it relates to the imputation concerned.”
In Griffin v. Sunday Newspapers Ltd [2011] IEHC 231, this Court accepted the contention of the parties in that case that this particular section in the Defamation Act 2009 did nothing more that codify existing legal principles and did not, of itself, constitute any significant extension of those principles.
This is evident from decisions such as McGarth v. Independent Newspapers (Ireland) Ltd. [2004] 2 IR 465, in which Gilligan J. also dealt with a preliminary issue as to whether an article was capable of having a defamatory meaning or any of the defamatory meanings pleaded in the statement of claim so that he might dismiss the claim m circumstances where he concluded the article or words were not so capable.
The present application may thus be best understood as one of a sui generis character peculiar to the law of defamation. While Order 19 has been invoked on the basis that the claim is frivolous or vexatious, that case has not been pressed on behalf of the defendants.
THE ARTICLE
The article in question appears under the by-line “A Star is born, but not on Camera”. The article was accompanied by a large photograph of the plaintiff and his partner, Ms. Jurgita Jachimaviciute.
The article was written in the aftermath of certain proceedings brought by the plaintiff in the Circuit Court in which he claimed damages for breach of contract against Iris Halbach, a midwife, and Mount Carmel Hospital after being asked to stop filming the labour of his partner, Jurgita Jachimaviciute in that hospital in December 2006.
The original Irish Times account of the court proceedings records that in evidence the plaintiff told the Circuit Court that the couple’s private consultant, Mr. Gerry Rafferty, had told them months before the birth that he saw no problem with filming the birth of their child. The plaintiff also gave evidence to the effect that he had obtained permission for this purpose from hospital staff. While he had no filming contract in writing, he considered he had a legal agreement with the hospital to permit the filming to proceed. However, while claiming that he had been prevented from filming, the plaintiff in the course of cross examination conceded that all Ms. Halbach, who was assisting with the baby’s birth on that occasion, had said was: “Maybe we could hang on a little with the filming until the baby is all recovered, if you don’t mind.”
This remark was made apparently in the context that Ms. Jachimaviciute was undergoing a caesarean delivery and a complication had arisen. Ms. Halbach had asked for a momentary stop in filming while she carried out a procedure to clear the baby’s airways after delivery. A further contemporary account of the Circuit Court case in the Irish Independent recorded that, about 40 minutes later, the plaintiff was filming his daughter in the hospital créche when Ms. Halbach entered the room and again allegedly asked him to stop filming.
At the conclusion of the plaintiff’s case in the Circuit Court, the trial judge, his Honour Joseph Matthews, acceded to a defence application that the case be dismissed and this application was successful. The learned Circuit Court Judge in the course of his ruling characterised the events as being an “emergency medical procedure” and further held that the plaintiff’s evidence was entirely incapable of being considered as amounting to a breach of contract. It is difficult to see how he could have found otherwise.
In the course of her article Ms. Power wrote:
“If a man in the delivery room has any purpose, which is debatable anyway, it’s to help to reassure and offer his hand to be squeezed, not to stick a camera in your face and ask if you’re ready for your close-up. John McAuley confirms every suspicion I ever had about the kind of man who films a birth. Last week McAuley failed in a law suit to win compensation after a midwife dared to interrupt him as he attempted to record ‘every precious moment of the first minutes of his baby’s life’. McAuley brought the claim against Iris Halbach and Mount Carmel Hospital after being asked to stop filming the labour of Jurgita Jachimaviciute in December 2006. A judge threw out the €38,000 claim for breach of contract. McAuley argued that he didn’t want any money, and his beef was that Halbach gave no explanation for filming to stop. But he didn’t include in his action the consultant who had given approval for the filming and who, as the most senior member of the medical team, would have been accountable had anything gone wrong.
McAuley aside, I’ve always suspected that there is a type of man who just can’t get his head around the fact that he is not, actually the most important person in the room when his wife or girlfriend is having a baby. He can’t face being an extra, there on sufferance. He has to be the director, the producer, the star. So he takes in a camcorder to film the birth. This is not, trust me, because friends and family are gagging to view the gory details, but because it wrests back control for him. It puts him at the centre of the action, and turns the event into another episode in his personal drama, in which women are bit-players.
McAuley’s daughter Simone was born by emergency section, and she needed emergency intervention to get her breathing. You’ve got to wonder how many more ’emergencies’ would have been required to merit McAuley’s full attention. There would have been silence in the theatre when she emerged, no sound of a cry because her airways were blocked with mucus and needed suctioning. Her mother would have been listening anxiously for the baby’s first wails and her father, you’d imagine, would have had more on his mind than camera angles and zoom positions – like comforting and reassuring her, for a start. But McAuley kept filming.
He says he wasn’t getting in the midwife’s way, as she hastened to get the baby breathing, but he was definitely getting up her nose. Her polite request that he ‘hang on a little with the filming until the baby is all recovered, if you don’t mind’ – which he couldn’t dispute, since he’d recorded it himself- was probably prompted more by astonishment at his behaviour than medical necessity. In the circumstances I’d say she was commendably restrained. Yet he claimed this remark proved she was ‘irrational’. Presumably a ‘rational’ person would have realised that this occasion was all about McAuley, and not about the tiny girl struggling to breathe, or the woman on the operating table with five layers of skin and muscle tissue sliced open.
Midwives work too hard, and their task is too important, to concern themselves with tiptoeing around the sensitivities of a father with a lawyer on speed-dial. The award of her legal costs won’t compensate the midwife that McAuley sued for the trauma of that trial. The midwife on duty really should have absolute power to evict anybody from the delivery room with no fear of legal consequences.
Most men come away from witnessing their child’s birth humbled, moved and in awe. The majority of chaps, given the choice, would rather wait outside with a box of cigars and a mobile phone to call the grannies.
But a small number of men clearly can’t accept the lowliness of their role in such a monumental enterprise, and do their damnedest to project themselves centre stage. For the sake of staff, and babies, and women who may not feel able to resist the will of such men, they may have to be run out of delivery rooms by the midwives in charge.
They won’t be hard to spot: they’ll be the guys with the laminated birth plans, the store of high energy bars – for themselves- and those goddamned camcorders.”
In the statement of claim it is contended that these words published by the first and second named defendants were in their natural and ordinary meaning and/or by way of innuendo, meant or were intended to mean the following:-
“(a) That the plaintiff showed no consideration or care for his partner;
(b) That the plaintiff was insensitive and/or had no concern for his partner or their new born baby in an alleged life threatening situation;
(c) That the plaintiff failed to reassure or comfort his partner during an alleged medical emergency;
(d) That the plaintiffs newborn baby had failed to breathe while the plaintiff continued filming;
(e) That the plaintiff acted immorally and irresponsibly;
(f) That the plaintiff was motivated by selfish self interests with no appreciation of his role at the delivery of his baby.”
It is further contended that the article caused the plaintiff extreme distress, embarrassment and humiliation and brought him into odium, ridicule and contempt by right thinking members of society, and gravely injured his character, credit and reputation.
DECISION
The test on an application of this nature has been outlined in a number of English cases, notably, Lewis v. Daily Telegraph Ltd [1964] A.C. 234, Charleston v. Newsgroup Newspapers Ltd [1995] 2 AC 65 and Mapp v. Newsgroup Newspapers Ltd [1998] QB 520. Rather than extrapolate passages from those cases I propose instead to refer to the passage in the judgment delivered by Gilligan J. in McGarth v. Independent Newspapers (Ireland) Ltd. [2004] 2 IR 465, referred to above, which to my way of thinking set out the legal position in admirably lucid terms. At p. 433 the learned Judge stated as follows:-
“The issue which I have to determine is whether the words are capable of bearing a particular meaning and counsel for the defendant has conceded that he is not entitled to re-argue this issue again before the trial judge if unsuccessful in this application. Counsel for the defendant accepts that he asks the court to determine the issue as a preliminary issue and that that has put the issue in the same position as if it was being determined during the course of the trial by the trial judge. At the trial it is for the judge to decide as a matter of law whether the words are capable of bearing a defamatory meaning on the principle that it is for the court to say whether the publication is fairly capable of a construction which would make it libellous and for the jury to say whether in fact that construction ought, under the circumstances, to be attributed to it. In determining whether the words are capable of a defamatory meaning the court is obliged to construe the words according to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence and will not consider what person setting themselves to work to deduce some unusual meaning might extract from them. The court should avoid an over elaborate analysis of the article because the ordinary reader would not analyse the article in the same manner as a lawyer or accountant would analyse documents or accounts. In deciding the issue I am satisfied that I am entitled to consider the impression that the article has conveyed to me personally in considering what impact it would make on the hypothetical reasonable reader and lastly, the court should not take a too literal approach to its task.”
Applying those principles to the instant case I am satisfied that the meanings contended for para. 6 of the statement of claim are in some respects clearly incapable of having a defamatory meaning. The assertion that the words meant that the plaintiffs newborn baby had failed to breathe while the plaintiff continued filming cannot be characterised as importing a defamatory meaning. Nor in my view can it seriously be argued that the article suggested or meant that the plaintiff acted “immorally”.
However, it does seem to me that in the overall context the remaining meanings contended for are capable of having a defamatory meaning, although of course it will ultimately be for a jury to determine if in fact the words ought to have or do have the meanings contended for on behalf of the plaintiff. Beyond so holding, I do not feel it is my function to add anything further by way of comment or otherwise.
In the course of submissions to the Court, Mr. Dermot Gleeson, S.C. for the defendants, argued that, even if the Court found that the article or parts of it were capable of a defamatory meaning, that his application should nonetheless succeed on the basis that the contents of the article were either privileged as a report of court proceedings or were matters of fair comment. Various passages from Gatley’s Libel and Slander, 11th Ed. were cited to this effect.
The first contention can be quickly dealt with. The article in the Sunday Times, unlike the contemporaneous accounts of the court case in the press generally, was not and did not purport to be an account of those proceedings. Rather it was a piece of commentary on the plaintiff which was prompted by the information disclosed by the bringing of the proceedings themselves. It can not therefore enjoy the privilege attaching to a contemporaneous report.
Insofar as any defence of fair comment is concerned, this contention raises the interesting point as to whether, on an application of this nature, the Court can go further than to hold that the article and words are capable of a defamatory meaning to hold further that a defence of fair comment must necessarily succeed. I do not believe that is the Court’s function at this point in the proceedings. The defence of “fair comment” is precisely that: a defence. In much the same way as the Statute of Limitations can be raised as a bar or defence to a good cause of action, it seems to me that the defence of fair comment in a defamation case is in much the same position.
Perhaps more importantly, I do not accept the contention advanced by counsel on behalf of the defendants that the article was all part of a piece with the court case which claimed damages for breach of some supposed contract. It was, to say the least of it, an extraordinary claim to have brought and, as pointed out by counsel for the defendants, there was no appeal from the ruling and decision of the learned Circuit Court Judge. However, any comments made about the wisdom or otherwise of bringing such a legal claim must be distinguished from commentary on the propriety of the plaintiff’s actions and behaviours while attending at the birth of his child. It is Ms. Power’s commentary on the latter which is the subject matter of the plaintiff’s complaint. What might be fair comment in the case of the former may not be such when applied to a father who is present at the birth of his child and who, with the consent of his partner and medical personnel, is permitted to record the birth of his child. Quite why such filming was permitted by the hospital to the degree it was is quite beyond me but that is not an issue with which this Court is concerned.
Furthermore, a defence of fair comment may in turn be defeated by malice or an absence of bona fides and, while a reply was not delivered to the defence in this case, it is clearly pleaded at para. 5 of the statement of claim, that the article in question was “malicious”. For that reason and notwithstanding that no reply to the defence has been delivered in this case, I do not regard such omission or failure as undermining the plaintiffs capacity to join issue with the defendants on any defence that may be raised during the course of the trial to the effect that a defence of fair comment must succeed. In the course of argument before this Court, counsel for the plaintiff suggested that the journalist in question had an agenda of gender bias when writing the article sufficient to defeat any claim of fair comment. He suggested that the purpose and intention of the article was to make a category of men, and in particular this plaintiff, look like ‘idiots’. The Court has no intention of expressing any view in relation to any such contention, other than to say that the mere fact that such areas of dispute may arise at trial strongly reinforces my view that the Court, on an application of this nature, should confine itself strictly to the issue as to whether the words complained of are capable of bearing a defamatory meaning.
The Court will therefore strike out those portions of the statement of claim which, as already indicated, it regards as incapable of bearing a defamatory meaning, but will otherwise decline to grant the relief sought by the defendants.
Dardis & anor -v- Bus Eireann / Irish Bus
[2016] IEHC 621 (08 November 2016)
URL: http://www.bailii.org/ie/cases/IEHC/2016/H621.html
Cite as: [2016] IEHC 621JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Facts
1. Bernadette Curtis (“Ms Curtis”) and her sister, Joan Dardis (“Ms Dardis”), are regular visitors to the Shrine of Our Lady of Knock. On 23rd June, 2013, they went with eight family members to Busáras. Among those family members was Ms Dardis’ adult daughter, Jennifer (“Ms Jennifer Dardis”). The intention of the family-party was to take a bus from Busáras to Athlone, and to change bus there for Knock.
2. Ms Curtis and Ms Dardis were travelling on free travel passes. Ms Curtis is entitled to such a pass as she has a disability. Ms Dardis was travelling on a carer’s pass; however, the person for whom she cared had, regrettably, passed away some years previous to June, 2013, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. So Ms Dardis had no entitlement to travel on the carer’s pass.
3. Ms Jennifer Dardis had her two children with her, one a toddler, the other nine years old. When the family party got on the bus, the toddler was resting on her mother’s shoulder. So Ms Jennifer Dardis asked if she could settle the child before paying the driver. He agreed to this and continued to take fares from other passengers who were boarding. When, after a few minutes, Ms Jennifer Dardis had not returned to pay the fares owing, the driver went down the bus to collect those fares.
4. According to both Ms Curtis and Ms Dardis (no-one else from the family-party gave evidence), Ms Jennifer Dardis had by this time sent her son up the bus with a €50 note to pay the driver; however, he refused to take money from a child. The driver, a soft-spoken gentleman, who gave evidence and who did not strike the court as a person who would be roused swiftly to temper, denied that he was ever approached by the nine-year old or refused to take payment. The court believes him and does not believe that Ms Jennifer Dardis ever sent her son up the bus with a €50 note.
5. In terms of what the driver allegedly did next, there was a striking inconsistency in the evidence offered by the two sisters. Ms Curtis claims that the driver came down the bus, roused to a temper by the fact that a nine year-old had been sent to pay him, asked to see the passes that the older passengers were using, and then said words to the effect of ‘Right, all of you off the bus.’ Ms Dardis’ account was different. She said the driver came down the bus and asked Ms Jennifer Dardis to pay. (This is also what the driver says he did). At this point, according to Ms Dardis, Ms Jennifer Dardis indicated that she was not going to pay for her children.
6. It is not clear why, after getting on the bus, Ms Jennifer Dardis had an apparent change of mind as to the need to make payment. The evidence of both appellants is that Ms Jennifer Dardis asked the driver if she could settle the child before paying, a request to which the driver politely acceded. Yet a few minutes later, according to Ms Dardis, Ms Jennifer Dardis was telling the driver that she was not obliged to pay the fares that he was seeking. In any event, according to Ms Dardis, after the driver met with Ms Jennifer Dardis’s refusal to pay, he asked to see the passes that various family members were using. Then, she claims, he erupted into a temper and said words to the effect of ‘Right, all of you off the bus’.
7. In short, according to Ms Curtis, the driver came down the bus in a temper because Ms Jennifer Dardis’ son had the audacity to offer payment. But, according to Ms Dardis, the driver came down the bus, sought payment of Ms Jennifer Dardis, and then erupted into a temper.
8. The inconsistencies do not end there. According to Ms Curtis, after the driver directed everyone to get off the bus, they did so. Yet she went on to say that when the Gardaí were called to resolve the altercation that had now arisen between the driver and the family group, she (Ms Curtis) was still on the bus. Ms Dardis’s testimony was that when the driver asked everyone to get off the bus, they did. Which sister’s evidence is to be preferred? In fact, the court prefers the evidence of the driver which was entirely coherent, contained no inconsistencies, and chimes with common-sense. He stated simply that he came down the bus, asked for payment, was refused payment, and went to fetch an inspector.
9. Around this time, the Gardaí were called for, presumably at the behest of the inspector, to resolve the difficulty that had now arisen. The evidence of the garda who attended at the scene, evidence that the court accepts as entirely true, was that, when he arrived, the family-party was still on the bus and that he (quite sensibly) asked them to get off so that matters could be resolved discreetly instead of in front of all the other passengers. The family-group acceded to this invitation and got off the bus. The fact that they were still on the bus at the time the garda arrived gives lie to the suggestion that the driver put the family-group off the bus.
10. The discussion that followed with the garda was calm and there was no great altercation. Both driver and garda indicated in evidence that at no stage was there ever any offer by any of the family-party to hand over the €50 that Ms Jennifer Dardis (according to both Ms Curtis and Ms Dardis) had allegedly handed to her child, only to deny moments later (according to Ms Dardis) that she was liable to pay a fare. Had there been such an offer, the driver indicated, he would simply have accepted the payment and headed off with the bus. But no payment being forthcoming, the family party could not travel as a complete party on the bus. So the bus left without them and they took a taxi to Heuston Station where they caught the train to Claremorris and travelled together to Knock.
11. What does the court accept to be the true facts of what occurred? It has indicated some of its conclusions above but it is as well to re-state them here:
(1) the family-party boarded the bus;
(2) Ms Jennifer Dardis asked if she could settle her infant child before paying such fares as were due;
(3) the driver acceded to this request;
(4) no payment being forthcoming, the driver subsequently went down the bus to collect the fares due from Ms Jennifer Dardis;
(5) Ms Jennifer Dardis’ son was not sent up the bus with a €50 note to pay the fares owing;
(6) Ms Jennifer Dardis denied that she was liable to make any payment for her children;
(7) the driver then got off the bus to fetch an inspector;
(8) the driver did not at any time explode in temper;
(9) the driver did not put the family-party off the bus;
(10) after the driver dis-embarked, the family-party remained on the bus;
(11) the Gardaí were sent for by Bus Éireann;
(12) the garda who attended at the scene got on the bus and asked the family-party to disembark so that matters could discreetly be discussed;
(13) the family-group acceded to this invitation and got off the bus;
(14) the discussions that followed were polite and restrained;
(15) at no time in the course of these discussions was any payment proffered;
(16) due payment not having been made, the family-party could not travel as a complete party and the bus left without them;
(17) the family-party subsequently made its way to Knock by train instead.
II. Ms Curtis’ Claims.
12. Ms Curtis comes now to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.
(a) A failure to inquire quietly and politely of the circumstances.
Having regard to the conclusions of fact reached above, the court considers no such failure to arise.
(b) The making of innuendoes that Ms Curtis had failed or refused to purchase a ticket to travel on the bus.
Having regard to the conclusions of fact reached above, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’ refusal to pay for her children. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; as the family-party were travelling as a party it was natural that they would disembark together; and they acceded to what they perceived as an invitation. The court does not consider that any innuendo was made at any point that Ms Curtis had failed or refused to purchase a ticket to travel on the bus. Even asking her to produce her free travel pass for checking did not involve any such innuendo; many people are often asked to produce a ticket or bus-pass when travelling on public transport and no-one thinks anything of it.
(c) A failure to take any or any reasonable care for Ms Curtis.
Having regard to the conclusions of fact reached above, there is no basis for this assertion.
(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred
This amounts in effect to a contention that Bus Éireann should have a system in place whereby young mothers are refused permission to settle down infant children on a bus before they furnish a bus-fare. The court must admit to some surprise that such an ideal would be contended for. Certainly the court finds no legal failing that such a system does not pertain. If anything, the driver in this case is to be commended for his politeness in allowing a young mother to board a bus and settle a child down, rather than refusing her permission to board until full payment was made, as he was perfectly entitled to do.
(e) Injuring Ms Curtis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.
Having regard to the conclusions of fact reached in Part I, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’s refusal to pay for her children. Ms Curtis was not the focus of attention. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; and they acceded to what they perceived as an invitation.
Bus Éireann contended that, given a single public order offence of which Ms Curtis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.
(f) Wrongfully, and in breach of contract, in breach of representations made and warranties given, Bus Éireann, its servants or agents, failed, refused and/or neglected to comply with the terms and conditions attached to the use of free travel passes, acting in a manner at variance with the representations and statements made regarding the use of free travel passes.
Ms Curtis was entitled to travel on her free travel-pass and, notwithstanding what occurred, could have gone to Athlone (and then Knock) on the bus by herself. She elected not to do so when the rest of the family-party were not travelling with her. But that she elected so to proceed does not yield the conclusion that Bus Éireann is guilty of the above-mentioned wrongs, and as a matter of law they are not.
(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.
Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of these alleged wrongs.
III. Ms Dardis’ Claims.
13. Ms Dardis comes to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.
(a) A failure to inquire quietly and politely of the circumstances.
Having regard to the conclusions of fact reached above, the court considers no such failure to arise.
(b) The making of innuendoes that Ms Dardis had failed or refused to purchase a ticket to travel on the bus.
Ms Dardis was travelling on a carer’s pass, but, as of 23rd June, 2013, the person for whom she cared had, regrettably, passed away some years previously, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. In other words, Ms Dardis failed to purchase a ticket to travel on the bus when she ought to have done so.
(c) A failure to take any or any reasonable care for Ms Dardis.
Having regard to the conclusions of fact reached in Part I, there is no basis for this assertion.
(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred.
This amounts in effect to a contention that Bus Éireann should have a system in place whereby young mothers are refused permission to settle down infant children on a bus before they furnish a bus-fare. The court must admit to some surprise that such an ideal would be contended for. Certainly the court finds no legal failing that such a system does not pertain. If anything, the driver in this case is to be commended for his politeness in allowing a young mother to board a bus and settle a child down, rather than refusing her permission to board until full payment was made, as he was perfectly entitled to do.
(e) Injuring Ms Dardis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.
As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. Even had the driver pointed directly at her and said ‘You have not paid your fare when you ought to have done so’, something the driver never did, he would have been entirely correct in such an assertion.
Bus Éireann contended at the hearing that, given a multiplicity of dishonesty offences of which Ms Dardis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.
(f) Wrongfully, and in breach of contract, in breach of representations made and warranties given, Bus Éireann, its servants or agents, failed, refused and/or neglected to comply with the terms and conditions attached to the use of free travel passes, acting in a manner at variance with the representations and statements made regarding the use of free travel passes.
As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. She therefore had no entitlement to travel on the bus.
(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.
14. Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of the wrongs alleged by Ms Dardis to have been done to her.
IV. The Decision in Watters
15. Under s.6(2) of the Defamation Act 2009, the tort of defamation consists of “the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person).” Section 2 of the Act of 2009 defines a “defamatory statement” as “a statement that tends to injure a person’s reputation in eyes of reasonable members of society”. Bus Éireann queried at the hearing of the within appeal whether either of Ms Curtis or Ms Dardis has much, if any reputation, given Ms Curtis’ conviction for a single public order offence in the past, and Ms Dardis’ conviction for a multiplicity of dishonesty offences in the past. Counsel for each of Ms Curtis and Ms Dardis relied on the decision of the Circuit Court in Watters v. Independent Star Ltd. [2010] IECC 1 in support of the contention that, notwithstanding these convictions, each of Ms Curtis and Ms Dardis enjoys, at the least, a ‘residual reputation’ that can be sued upon in defamation.
16. In Watters, the plaintiff was serving two sentences of imprisonment for certain child pornography offences, these being offences that rightly attract very considerable public opprobrium. He sued for defamation following publication of a newspaper article which alleged that he had been engaged in a “seedy” and “weird” relationship with another prisoner who had attracted a certain notoriety for the offences he had committed. It was claimed that the men had been “alone in the showers” and “that no-one ever caught them doing anything” but noted that it had been “suggested that something might be going on”. The plaintiff claimed that there was a defamatory innuendo that he had been engaged in an “illicit homosexual relationship” with the other prisoner and was not sincere in seeking rehabilitation in respect of his addiction to child pornography.
17. Counsel for the defendant in Watters relied on Australian authority (Rivkin v. Amalgamated Television Services PTY Limited (2001) NSWSC 432) to argue that it is not defamatory in this day and age to say of a person that s/he is engaged in lawful sexual activity with another adult. In the Circuit Court, Matthews J. found that there were distinctive reasons for identifying a defamatory dimension to the allegations of homosexual conduct in that case, viz. (1) the prison-rule breaking aspect of the acts involved, (2) the notorious character of the alleged associate and (3) the hypocritical stance implicitly assigned to a plaintiff who had “sought in particular with…family members who had supported him to be truthful and honest with respect to his relationships with people and his behaviour in prison”.
18. Subtracting elements (1) to (3), it is clear that Matthews J. did not question the general proposition that it is not defamatory to allege that a person engages in lawful sexual activity. And, if the court might express an obiter opinion, rightly so. The enlightened general perception of homosexuality evidenced, inter alia, by the approval of the 34th Amendment of the Constitution, appears to this Court to have the necessary consequence that no defamation can nowadays arise in an allegation that (i) a person engages in some lawful sexual activity, and/or (ii) has a particular sexual orientation, save, in each case, where such allegation involves innuendo, e.g., as to dishonesty. Thus, Reynolds v. Malocco [1999] 2 IR 203, must, it seems to the court, be seen as, at the least, no longer correct in its contrary findings. If language is a living thing, so too are the predominant mores and opinions shared by “reasonable members of society”. Of course, the particular significance of Watters in the context of the within proceedings is in the findings of Matthews J. as to ‘residual reputation’, viz:
“Although he has suffered a substantial loss of reputation the Plaintiff cannot reasonably be said to be in the same category as a convicted prisoner who refuses to accept his guilt, continues to deny all offences and do absolutely nothing but serve a sentence under protest of innocence with no remorse, contrition, acceptance of wrongdoing or any intention to rehabilitate or not re-offend. There is therefore in my view in this Plaintiff a residual ‘reputation’ capable of being damaged by the nature of the allegations suggested in the [impugned] article….He has because of the manner in which he has met the case against him in the Circuit Criminal Court a residue of reputation that is capable of being damaged and fits into a category of prisoner who is different in degree, if not in kind, to those who, in similar circumstances, simply deny all wrongdoing despite their conviction.”
19. The court does not know how Ms Curtis or Ms Dardis met the criminal charges that were successfully laid against them in the past. Neither, however, does the court consider that one or more public order or dishonesty convictions, now of some years’ vintage, of themselves necessarily deprive a person of reputation sufficient to ground an action for defamation at some later stage, albeit that the existence of a criminal record may impact (less so perhaps in the case of a single public order conviction, more so certainly in the case of a multiplicity of dishonesty offences) on the amount of damages that might be awarded if the various elements of defamation are established, and here, of course, they have not been established. For the reasons identified previously above, the court does not consider that any of the incidents that occurred at Busáras on 23rd June, 2013, and of which each of Ms Curtis and Ms Dardis separately makes complaint, involved the publication of a defamatory statement concerning either of them to one or more other persons.
V. Damages Sought by Ms Curtis.
20. Ms Curtis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Curtis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Curtis’ claims for damages are refused.
VI. Damages Sought by Ms Dardis.
21. Ms Dardis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Dardis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Dardis’ claims for damages are refused.
VII. Costs.
22. The court will hear the parties on the issue of costs.
Gilchrist -v- Sunday Newspapers Ltd & ors
Rogers -v- Sunday Newspapers Ltd & ors [2017] IECA 191
T
Judgment of Ms. Justice Irvine delivered on the 21st day of June 2017
1. This judgment relates to two appeals brought by the defendants/appellants against the order and judgment of the High Court (MacEochaidh J.) of the 15th March, 2016. In particular, it addresses the ex tempore judgment of the High Court judge which refused an application brought by the defendants in both actions seeking orders pursuant to s. 14(1)(a) and (b) of the Defamation Act 2009 (“the 2009 Act”).
Background
2. The plaintiff/respondent in the first of the above-entitled proceedings, Mr. Patrick Benedict Gilchrist (“Mr. Gilchrist”), is a former member of An Garda Síochána who, prior to his retirement, had attained the rank of Detective Inspector. It is common case that whilst so employed he was involved in the State’s Witness Protection Programme (“WPP”).
3. Ms. Isabel Rogers (“Ms. Rogers”), the plaintiff in the second of the above-entitled proceedings, is a psychotherapist by profession. It does not appear to be in dispute that she was retained for the purpose of providing professional services in the context of the State’s WPP. Mr. Gilchrist and Ms. Rogers are now married to each other and reside in England.
4. By separate proceedings each issued on the 22nd October, 2013, Mr. Gilchrist and Ms. Rogers commenced proceedings against Sunday Newspapers Limited, its editor, Mr. Colm McGinty, and Ms. Nicola Tallant, a journalist employed by Sunday Newspapers. They are claiming damages for defamation arising out of articles authored by Ms. Tallant which were published in the Sunday World on the 9th and 16th June, 2013. For the purposes of this judgment, I will refer to the three defendants as “the Newspaper” as nothing turns on the individual involvement of the three defendants.
5. Insofar as these appeals relate to applications brought by the Newspaper concerning the meanings which Mr. Gilchrist and Ms. Rogers seek to impute to the article of the 16th June, 2013, I have decided to reproduce the text of that article in full immediately below. For reasons to do with the pleadings which I will later explain, some of the text appears in italics, some in bold print and other parts have been underlined. I will then describe some of the more significant features of the earlier article insofar as the principal complaint made on this appeal is that the High Court judge erred in law when he concluded that the article of the 16th June was reasonably capable of bearing the imputations and meanings pleaded by the plaintiffs by reference to the “get up”, photographs, headlines and text of the earlier article of the 9th June, 2013.
Article of 16th June, 2013
6. The article of the 16th June, 2013 appears below a photograph of Ms. Rogers and Mr. Gilchrist with the following headline and text:
“Force faces investigation on spending”
“The Garda Síochána have been given two weeks to disclose a raft of receipts and documents relating to monies alleged to have been spent by the Special Detective Unit to protect State witness Dave Mooney.
The State has to furnish the details of its spending, including fees paid to a “doctor” who is not registered on the medical councils in Ireland or the UK and who went on to marry Mooney’s Garda handler.
The High Court has ordered the discovery of all documents, including the bills charged by therapist Isabel Rogers who, it is claimed by Mooney, was passed off as a doctor to examine him.
Last week the Sunday World revealed how Rogers and former top cop Benny Gilchrist are at the centre of the case.
Divorced
It is understood Gilchrist later left his wife, divorced and married Rogers.
The investigation into funds and expenses is believed to have examined how the pair travelled first-class around the world and stayed in five-star hotels with other SDU officers at the expense of the State.
During the trial of CIRA extortionists Billy Clare and Martin Kelly it was claimed that almost €40,000 was spent on the State witness Mooney.
However, the businessman disputes this. He says he lived for about €130 a week in safe houses as he waited to give evidence and had to make that stretch to grocery shopping, medical supplies and even his clothing.
He is taking the case because he says he was promised a Green Card to go to the US and a new identify after his evidence helped successfully jail Kelly and Clare, but instead he says he got nothing and is still living in Ireland in fear for his life.”
Article of 9th June, 2013
7. The earlier article of the 9th June, 2013 is what can only be described as a colourful, eye catching report spread over two pages with approximately one third of the total area given over to the text of the article. There are two photographs of Ms. Rogers, one with Mr. Gilchrist and one of her on her own. Beside the latter photograph is the following headline: “PROBE: Isabel Rogers is not registered with the medical councils in either Ireland or England (left) with Benny Gilchrist”. There are three photographs of Mr. Gilchrist. Alongside one of these is the caption: “STUNNED: Gilchrist refused to comment”. There is also a photograph of two cars beneath which is the caption: “LAVISH LIFESTYLE: Flash cars parked outside the home of Gilchrist and Rogers”.
8. The two main headlines to the article are printed in a large bold font and read “THE WORLD IS WATCHING COPS UNDER SPOTLIGHT” and “WITNESS PROTECTION”, beneath which are three headlines set out in large bold type and in bullet point format. These read as follows:-
“• Landmark case set to expose the “shambles” at heart of secret Garda unit
• Doctor who assessed witnesses wasn’t registered with Irish Medical Council
• She became the lover of cop handler who was probed over unit’s cash”
9. There then follows the text of the article which deals with the author’s “Special Investigation” into Mr. Gilchrist and Ms. Rogers where she details her understanding of the role of Mr. Gilchrist and Ms. Rogers in relation to the State’s WPP. She refers to a “probe” set to re-ignite accusations concerning Mr. Gilchrist’s expenditure and lifestyle while carrying out his role and the fact that he was previously investigated for suspected misappropriation of funds. She refers to “thousands in cash” paid to Ms. Rogers for one brief examination of a witness within the WPP. The article reports that accusations had been made to the effect that Ms. Rogers had travelled first class around the world at the expense of the State, to the fact that she was not a medical doctor and that she had passed herself off as such. It also reports that the Newspaper had “tracked down” Mr. Gilchrist and that when he had been contacted he was in no mood to talk. The article also referred to the affluent lifestyle, home and cars enjoyed by Mr. Gilchrist and Ms. Rogers.
The claims of Mr. Gilchrist and Ms. Rogers
10. The statement of claim in each action was delivered on the 14th November 2013.
It is important in this regard to make clear that while the Newspaper’s applications pursuant to section 14(1) of the 2009 Act were directed to the imputations alleged by each plaintiff in relation to the article of 16th June, 2013, the statement of claim in each case claims that the two-page article published on the 9th June, 2013, which I have used my best endeavours to describe, was grossly defamatory of and concerning the plaintiffs. In the case of Mr. Gilchrist, some 15 defamatory imputations are pleaded while there are 17 defamatory imputations pleaded in the case of Ms. Rogers.
11. At para. 9 of his statement of claim, Mr. Gilchrist, having set out the words which appear in italics above from the article of the 16th June, 2013, claims that the Newspaper falsely and maliciously published those words and/or statements of him and that:-
“In their natural and ordinary meaning, whether or not in combination with the reference to the article of the 9th June 2013, the said words and/or statements meant and/or were understood to mean that:-
(a) the plaintiff was responsible for improperly passing off his lover as a ‘doctor’ to examine a witness on the Witness Protection Programme;
(b) the plaintiff had arranged for the payment of inappropriate payments of fees to his lover.
12. At para. 10 of his statement of claim, Mr. Gilchrist pleads that the Newspaper falsely and maliciously published the words and/or statements which are underlined in the article above and which he states in their natural and ordinary meaning meant or were understood to mean that:-
(a) He had misappropriated State funds (either funds meant for the witness or otherwise), to his own use and that of his lover, for use in travelling first class around the world and staying in five star hotels (or other inappropriate spending);
(b) he had misappropriated State funds (either funds meant for the witness or otherwise), to his own use and that of his lover, for use in travelling first class around the world and staying in five star hotels (or other inappropriate spending), with the result that witness in question was abandoned and left in fear of his life;
(c) he had made false promises to Mr. Mooney in return for his participation in the Witness Protection Programme;
(d) he had acted inappropriately and unprofessionally in his role as an officer within the Witness Protection Programme.
13. Insofar as Ms. Rogers is concerned, at para. 7 of her statement of claim, in respect of the text which is printed in bold in the article of the 16th June, 2013 reproduced above it is asserted that the Newspaper falsely and maliciously published those words and statements concerning her and that:-
“In their natural and ordinary meaning and/or by innuendo from the words and/or statements themselves, the said words and/or statements meant or were understood to mean that:-
(a) The plaintiff fraudulently passed herself off as a medical doctor to Mr. Mooney and to An Garda Síochána;
(b) the plaintiff concealed her fraud until the Sunday World revealed it;
(c) the plaintiff carried out tasks for which she was not professionally qualified including medical assessments;
(d) that any fees paid to the plaintiff, were on foot of improper bills and/or demands made by her;
(e) that the plaintiff was the beneficiary of State funds spent inappropriately;
(f) that the plaintiff participated with members of An Garda Síochána in spending money inappropriately;
(g) the plaintiff had taken advantage of her role and had dishonestly misappropriated tax payers’ money to enrich herself and/or derive other benefits from her appointment and her role including first class travel and five star accommodation;
(h) the plaintiff so enriched herself with the consequence that monies intended for a witness under the scheme were misappropriated to her use leaving the witness abandoned and in fear of his life.”
The Newspaper’s application
14. The Newspaper issued a motion pursuant to s. 14 of the 2009 Act in each set of proceedings. In Mr. Gilchrist’s proceedings the Newspaper’s application was directed to both articles whereas in Ms. Roger’s case the application was confined to the imputations that might reasonably be sustained by the article of the 16th June, 2013. This appeal is only concerned with whether the words contained in the article of the 16th June, 2013 are capable of bearing the imputations and meanings pleaded on behalf of Mr. Gilchrist and Ms. Rogers.
15. The Newspaper’s argument focused upon the difference between an article which would suggest to the reasonable reader that a person had actually engaged in particular activities or was guilty of certain identified wrongdoing and one which, like that of the 16th June, 2013, might reasonably be considered to bear the imputation or be understood to mean that the person was suspected of doing those things or was perhaps under investigation for the wrongdoing reported. The Newspaper accepted that the article had undoubtedly reported, in the context of an order for discovery made in High Court proceedings, that a Mr. Dave Mooney, who was a participant in the State’s WPP, had made wide ranging allegations concerning the conduct and lifestyle of Mr. Gilchrist and Ms. Rogers while working for the State’s WPP. However, the Newspaper’s case is that the article was not reasonably capable of meaning that each of those allegations were true and that Mr. Gilchrist and Ms. Rogers were guilty of the misconduct alleged.
Judgment of the High Court Judge.
16. The trial judge commenced his analysis of the defendants’ application by focussing upon the article of the 9th June, 2013 which the Newspaper maintains is not admissible for the purposes of the meaning to be attributed to the article of the 16th June, 2013. He states in his ex tempore judgment that the impression created by the article of the 9th June, with its dramatic photographs of flashy cars and of people taken without their knowledge when combined with the lack of clarity as to the nature of the investigations referred to therein, compelled him to refuse the Newspaper’s application given that he was satisfied that the reasonable person of normal intelligence who read the article would likely be left with the same impression. He was satisfied that he could read the publications in conjunction with each other as he was of the view that the reader of the article on 16th June was likely to have read the article featured in the same newspaper the previous week. The High Court judge then considered the article of the 16th June noting that insofar as the article refers to an investigation it was not at all clear what the investigation was, whether it was an investigation by the court, by a judge, the police force or, indeed, the newspaper itself. The High Court judge emphasised the fact that the investigation had not been contextualised in the article which left open a number of different possibilities.
17. The trial judge set out that the case made by the defendants is that at their height the articles indicate that the plaintiffs are the subject of certain investigations and that a reasonable reader would not read into the text that they are guilty. He distinguished the facts of the present case from those in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 and Griffin v. Sunday Newspapers [2011] IEHC 331 where there clearly were actual investigations under way. He noted from the article of the 9th June, 2013 that the investigation referred to was being carried out by the newspaper itself and this was to be inferred from the dramatic photographs, the fact that individuals were being door-stepped, photographs were taken without their knowledge and people were being tracked down. The lack of specificity as to what investigations were being conducted and by whom seemed to compel the trial judge to reach the conclusion that he should refuse the defendant’s application.
18. In summary, it would seem that the High Court judge refused the Newspaper’s applications for three reasons:-
1. He considered that the meanings which the plaintiffs sought to attribute to the article of the 16th June, 2013 might be determined by the reasonable reader based on the assumption that they had read the article of the 9th June and in the context of the impression that that article would likely have had on them when it came to considering the meaning of the article of the 16th June, 2013.
2. Taking judicial notice of the fact that people who read Sunday newspapers tend to do so on a loyal basis, the fact that the articles were only one week apart allowed the court to take the view that persons reading the second publication would likely have had some memory of the first article and were prompted to connect the material contained in the two articles;
3. The fact that the investigations mentioned in the articles had not been contextualised left open the meanings contended for.
Submissions
19. Mr. Oisín Quinn S.C., on behalf of the Newspaper, submits that the trial judge erred in law while considering the s.14 application, which required him to consider whether the article of the 16th June, 2013 was reasonably capable of the meanings contended for by the plaintiffs, when he looked to the content of the article of the 9th June 2013 for that purpose. He accepted that the decision in Travers v. Sunday Newspapers Ltd (see Hedigan J. in High Court [2012] IEHC 185 and ex tempore judgment of Hardiman J. in Supreme Court delivered on 12th October, 2015 (upholding the High Court decision)) was clear authority for the proposition that, when ruling on meaning, the court could look to the impression created by the “get up” of the article concerned, including its photographs and headlines. However, he submits that it was not authority that when considering meaning in the context of one article, the court was entitled to look back on the content or “get up” of an earlier article, as had occurred in the present case.
20. Counsel submits that the decisions in Bradley v. Independent Star Newspapers [2011] 3 IR 96 and Hayward v. Thompson [1982] Q.B.47 do not support the entitlement of a plaintiff to rely upon an earlier article for the purposes of considering the meanings that may be imputed to a later publication. Those cases concerned the entitlement of a jury to consider a later publication purely for the purposes of identifying the person about whom an earlier highly defamatory article had been written.
21. It is submitted that the big difference between the present case and the identification cases such as Bradley and Hayward is that the reasonable reader is expected only to remember the name of the person about whom the earlier article had been written. In the present case, the jury would be asked to proceed on the basis that the reasonable reader should be assumed to have bought both papers and at the time of reading the second article had remembered the previous article sufficiently well to allow them to interpret the latter article in light of the initial article. This was not a reasonable assumption.
22. Counsel for the Newspaper submits that the High Court judge acted impermissibly when he referred back to the article of the 9th June, 2013 when deciding whether the article of 16th June, 2013 was reasonably capable of bearing the imputations and meanings contended for by the plaintiffs. It would not be reasonable to assume that the reader of the later article would have had a copy of the earlier article beside them as they were reading it even if there was a reference to the earlier article therein. Neither was it realistic to suggest that the reasonable reader would have remembered enough about the first article such that it would have informed their view of the meaning of the second article. There could be no reliable analysis of what an article actually meant if its meaning was to be gleaned by reference to the impression left by on the mind of the reasonable reader by an earlier article.
23. When considering the imputations and meanings which the article of the 16th June, 2013 might reasonably bear, the article was not to be treated in the same manner as a statement published in a book or one published in a book which was serialised or, for that matter, something that may have been published in a two day exposé in a newspaper, as was the case in Galloway v. Telegraph Group Ltd. [2004] EWHC 2786 (QB). In such cases, it is expected that the reader will carry forward the impression created by what is essentially the earlier part of the same publication.
24. Mr. Quinn submits that if this Court should conclude that the trial judge erred in law in looking to the earlier article of the 9th June, 2013 as to the meanings that might be ascribed by the notional reasonable reader to the words in the article of the 16th June, 2013, then it must proceed to examine the article of the 16th June on its own merits to see if, applying the correct test, the article is capable of bearing the imputations and meanings contended for by the respondents in their respective statements of claim. He submits that the meanings which Mr. Gilchrist and Ms. Rogers seeks to impute to the article of the 16th June, 2013 are perverse and could not be allowed to go to a jury.
25. In particular, Mr. Quinn places emphasis on the distinction between a statement as to a party’s guilt or culpability in respect of some particular type of action and a statement that they are or were suspected of or under investigation in respect of their conduct. He relies upon the judgment in Lewis v. The Daily Telegraph [1964] A.C. 234 and, in particular, the decision of Reid LJ. He submits that the ordinary reasonable reader would be expected to be suspicious about the conduct of Mr. Gilchrist and Ms. Rogers as a result of what was printed in the article of the 16th June but that such a reader would likely postpone judgment on their actions to the outcome of the case referred to in the article. Counsel emphasises that it is not alleged in either statement of claim that the article is defamatory because it means there was an investigation into Mr. Gilchrist’s conduct or that Mr. Gilchrist was suspected of the actions referred to at paras. 9(a) and (b) but that the article could be taken to mean that he did those acts. Likewise, in relation to Ms. Rogers, the claim of defamation is that the article is stated to mean that she had done each of the matters referred to at paras. 7(a) to (h) inclusive. The article is not claimed to be defamatory because Mr. Gilchrist or Ms. Rogers were merely suspected of those actions. They might, as Mr. Quinn observed, have opted to claim that they had been defamed because the Newspaper alleged that they were suspected of these things but they had not chosen such an approach.
26. Mr. Quinn also submits that it was irrelevant for the purposes of the s. 14 application that there was a lack of clarity as to precisely what investigation had been carried out or might have been underway in respect of the conduct of Mr. Gilchrist or Ms. Rogers. The article was not claimed to be defamatory because it had reported that there was or had been an investigation into their conduct. According to Mr. Quinn, the plaintiffs had “gone for broke” in claiming that the article meant they were actually guilty of the conduct mentioned therein. Accordingly, the High Court judge had erred in law when he factored into his consideration the fact that it was unclear as to what, if any, investigation was being referred to in the two articles. It was submitted that any such lack of clarity could not be relied upon to support a claim that the reasonable reader might understand the publication to mean that the plaintiffs were guilty of rather than merely under investigation or suspected of the conduct identified therein.
27. Mr. Quinn concedes that if the High Court judge was entitled to consider the range of imputations and meanings which the article of the 16th June might reasonably bear having regard to the impression created by the earlier article of the 9th June 2013, that his s. 14 application and, by necessity, this appeal cannot succeed. T hat he has adopted such a position is perhaps not surprising in light of the fact that the same meanings were pleaded by Mr. Gilchrist and Ms. Rogers in respect of the article of the 9th June, 2013 yet no application was brought under s. 14 seeking to strike out those meanings as ones which would be wholly unreasonable.
The plaintiff’s submissions
28. Mr. Dermot Gleeson S.C., on behalf of Mr. Gilchrist and Ms. Rogers, submits that the trial judge was correct as a matter of law when he concluded that he could consider whether the article of 16th June, 2013 was reasonably capable of bearing the imputations and meanings contended for by them in their statements of claim by reference to the content and “get up” of the earlier article of 9th June, 2013. He submits that there is no logical distinction that can be drawn between these two articles and a letter which forms part of a chain of correspondence or the serialisation of a book in a newspaper or a series of television programmes when it comes to consider the meaning of an allegedly defamatory statement or publication. In such cases, meanings are to be determined by looking at the entirety of the publication. In particular, he relies upon the decision in Galloway v. The Telegraph Group Ltd. [2004] EWHC 2786 (QB) and [2006] EWCA Civ 17 in which the court considered the meanings to be imputed to a number of articles concerning the plaintiff published by the newspaper in two consecutive editions. Of importance, Mr. Gleeson submits, is the fact that the article of the 16th June, 2013 refers the reader back to the earlier article. He also relies upon the fact that the article of 9th June remained online and was capable of being accessed by anyone who read the article of 16th June, 2013.
29. The decision in Travers v. Sunday Newspapers Ltd. [2012] IEHC 185, according to Mr. Gleeson, makes clear that a judge should not withdraw a question of meaning from a jury unless satisfied that it would be “wholly unreasonable” to leave the question go to the jury. Meaning had to be ascertained from the context in which the words complained of were published and in this case that context included not only the article of the 16th June and its contents but also the “get up”, photographs and headlines of the earlier article of the 9th June, 2013. He highlighted a number of comments, headlines and photographs in the article of the 9th June, 2013, all of which he maintained imputed guilt to his clients rather than an imputation that they were merely suspected or were being investigated in respect of certain conduct. The clear implication was that they had done or been responsible for all of the things stated in the article. Mr. Gleeson also highlights the fact that no application was made by the Newspaper to strike out the same meanings as are pleaded in respect of the article of the 16th June, 2013 insofar as they are repeated in the context of the article of the 9th June, 2013. Accordingly, regardless of whether the Newspaper was or was not successful on this appeal, these meanings would be going before a jury in any event concerning the article of the 9th June, 2013 and that was another reason why the appeal should not be allowed.
30. Applying the principle in Travers to the present case, in particular the requirement that the court import by way of context the language and photographs used in the earlier article, counsel for the plaintiffs submits that whether what was written on the 16th June, 2013 implied guilt on the part of Mr. Gilchrist or Ms. Rogers was a matter that had to be left to the jury.
31. If the trial judge was not entitled to consider whether the article of the 16th June, 2013 was reasonably capable of sustaining the imputations and meanings pleaded in the context of the earlier article of the 9th June, 2013, Mr. Gleeson nonetheless seeks to argue that when read on its own the imputations and meanings pleaded in the article of the 16th June can reasonably be sustained. He submits that it is the broad impression conveyed by a defamatory publication that has to be considered and not the meaning of each word under analysis. A statement of suspicion, he argues, may in fact impute guilt. He relies in this regard upon the decision of Devlin LJ. in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 and, in particular, his warning at p. 285 that:-
“A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire (…) One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. (…) loose talk about suspicion can very easily convey the impression that a suspicion is well founded.”
Mr. Gleeson also relies upon that part of his judgment to the effect that the layman reads in an implication or meaning into a publication much more freely than a lawyer will.
32. Mr. Gleeson also submits that the Newspaper’s reliance upon the decisions in Lewis and Griffin v. Sunday Newspapers [2012] 1 IR 114 is misplaced. The facts in both of those cases established that there had in fact been an actual investigation. Accordingly, it was reasonable for the defendants in those cases to then assert that there was a difference between a publication which stated specifically that a party was being investigated in respect of some wrongdoing and one where it was to be inferred from the article that they had actually been found guilty of wrongdoing. Here there was no investigation of Ms. Rogers and, insofar as there was an investigation into Mr. Gilchrist, that was in respect of alleged misuse of overtime and he had been fully investigated and exonerated. Lewis and Griffin could therefore be distinguished on their facts.
Discussion
33. It is not disputed that the Newspaper’s appeal raises two substantive issues. The first of these is whether the trial judge erred in law in concluding that it was legitimate for him to consider the contents of the article of the 9th June, 2013 for the purposes of deciding upon the meaning of the article of the 16th June, 2013. The second issue is whether, excluding any consideration of the earlier article of the 9th June, 2013, the words contained in the article of the 16th June, 2013 are reasonably capable of bearing the meanings pleaded on the plaintiffs’ behalf.
34. Section 14(1) of the Defamation Act 2009 provides as follows:-
14(1) “The court, in a defamation action, may give a ruling-
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning,
upon an application being made to it in that behalf.”
35. It is not disputed that for the purposes of an application under section 14 (1) of the 2009 Act, the onus rests upon the defendant to establish that the article complained of is not reasonably capable of bearing the imputations and meanings pleaded by the plaintiff. The test to be applied by the court is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meanings (see Hardiman J. in Travers). It is also not disputed that the role of the judge on a s. 14 application is not to determine the meaning of the words or article published but to delimit the outside boundaries of the possible range of meanings that might be ascribed thereto by the notional reasonable reader. Clarke M.R. in Jeynes v. News Magazines Limited [2008] EWCA Civ 130 helpfully summarised the principles relevant to how the meaning of words should be determined as follows:-
“(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any “bane and antidote” taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’.”
36. Guidance as to the general approach to be adopted by a court when faced with a s. 14 application may be found in the helpful decision of Walsh J. in Quigley v. Creation Limited [1971] 1 I.R. 269 albeit that his judgment is one which addresses the circumstances in which a judge should, or should not, withhold a particular meaning from the jury. This is what he said at p. 272 of his judgment:-
“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of.”
37. It is also well settled law as is set out, for example, in the decision of Hedigan J. in Travers v. Sunday Newspapers Limited [2012] IEHC 185 that the words complained of must be construed in the context in which they appear. That case involved an article written by the newspaper which the plaintiff maintained was defamatory on the basis that the hypothetical reasonable reader would likely conclude that he had been involved in his own kidnapping. The newspaper brought an application pursuant to s. 14(1) of the 2009 Act seeking an order declaring that the publication was not reasonably capable of bearing the imputations and meanings contended for by the plaintiff i.e. that he was a willing participant in his own kidnapping with the result that he enjoyed significant material wealth which had allowed him purchase expensive cars and holidays abroad. The newspaper, in pursuing the application, relied upon the fact that there were many phrases in the article which suggested the plaintiff’s innocence and in particular the headline had stated that the robbery had nothing to do with him. It had also reported that he had been released from Garda custody without charge, that he had reported the matter to An Garda Síochána and had been distraught during the kidnapping.
38. However, the plaintiff relied upon what is commonly described as the “get up” of the whole article to submit that the overall impression created by the article was that he was a willing participant in the heist and that he had benefited financially from it. He relied upon the fact that the article had included a large colour photograph of him standing in front of a Ferrari along with captions such as “high life” to submit that the notional reasonable reader would be capable of attributing to the article the meanings which the newspaper sought to strike out. The plaintiff argued that the judge should not remove from the jury decisions about the overall meaning of the article particularly when the average reader is drawn to large colour photographs and headlines more than they are to the small text that may be contained in the article.
39. Hedigan J. concluded that the article, when viewed in the context of the photographs and captions, depicted a style of life that was not normally associated with the lifestyle of a bank clerk. He further held that, when viewed objectively from the viewpoint of the hypothetical reasonable reader, the publication was capable of giving rise to the meanings contended for. Thus it was he expressed himself satisfied that it would be unduly prejudicial to the plaintiff not to allow the meanings which the newspaper had sought to challenge be put before the jury.
40. In his ex tempore judgment delivered on the appeal, Hardiman J. upheld the decision of the High Court. In so doing, he relied upon the decision in Lewis v. Daily Telegraph Limited [1964] A.C. 234 as support for the proposition that whether a particular publication is capable of bearing the meanings pleaded by a plaintiff is a question of impression and the court had to consider the whole of the publication, which included the “get up” – headlines, pictures and captions. All of this had to be taken into account. Further, he specifically rejected the submission made by counsel for the newspaper that if any part of the article was logically inconsistent with the implication claimed that no other part of the article could be capable of that implication.
41. It is also beyond doubt that it is permissible for a jury to look at a second article to see to whom an earlier article, which is alleged to be defamatory of a plaintiff, refers. It is not the case, however, that a plaintiff can attempt to establish that an innocent earlier publication could be rendered defamatory by a consideration of facts later revealed in a distant publication as was the case in Grappelli v. Dereck Block Ltd. [1981] 1 W.L.R. 822.
42. A case in point is that of Bradley v. Independent Star Newspapers [2011] 3 IR 96, in which Hardiman J. concluded that the High Court judge had erred in law, having belatedly concluded that a second newspaper article was admissible for the purpose of establishing the identification of persons referred to in the earlier article, in failing to so advise the jury.
43. In Bradley, the first article published by the newspaper described two brothers as the most dangerous criminal gang operating in Dublin. They were alleged to have made several million euro from their crimes and to have benefited from a string of cash in transit robberies. The two brothers were not named. Some months later, the newspaper published another article which was clearly about the plaintiffs. It gave their names and published, as part of the second article, a photograph of the first article and also a picture of Mr. Bradley on another page beside a headline “We are not ATM thieves”. Underneath the photograph of the earlier article was a headline: “Star Sunday June 13th – We first told of CAB probe”.
44. Starting at para. 48 of his judgment, Hardiman J. commenced his consideration concerning the extent to which a second article might be relied upon to establish whether another article was published “of and concerning” the plaintiff. In reaching his conclusion, he relied upon the decision in Hayward v. Thompson [1982] Q. B. 47, where, in relation to two articles published in a Sunday newspaper on consecutive Sundays, the trial judge had ruled that it was permissible for the jury to look at the second article to see to whom the first article referred because a grave injustice would occur if this was not to be permitted. In Hayward, the court was concerned with what is referred to as the “Scott affair”. The allegation was that a man called Andrew Newton had been paid £5,000 to murder Mr. Norman Scott who had claimed to have had a homosexual relationship with Mr. Jeremy Thorpe.
45. In Hayward, the first article published by the newspaper claimed that the names of two more people connected with the affair had been given to the police and that one was a wealthy benefactor of the Liberal Party. Mr. Hayward was a well known philanthropist who had given significant sums to the Liberal Party but he was not named in the first article. However, a week later, a second article published by the newspaper contained his name. As a result, Mr. Hayward claimed damages for the libel contained in the first article. The trial judge ruled that the second article could be considered by the jury in order to determine to whom the first article referred.
46. What is important about the decision in Hayward is that the words in the first article were clearly defamatory on their face and were intended to refer to the plaintiff. The only question unresolved by the first article was the identity of the person about whom the article had been published. It was not a case in which the first article contained what would otherwise have been an innocent statement which the plaintiff sought to contend could later be rendered defamatory by some fact which emerged in a later article.
47. Hardiman J., in the course of his judgment in Bradley, explained why a second article might be admissible to establish the identity of a person the subject matter of an earlier publication. He did so by reference to the following brief extract from the judgment of Sir Stanley Rees in Hayward where at p. 72 he stated that if the second article was not admissible as to the identity of the person the subject matter of the first article:-
“… it would be open to a newspaper to publish a virulent libel without identifying the person defamed but adding a statement that the victim would be identified in a week’s time. The newspaper could then a week later publish the name of the person defamed without attracting liability for libel.”
48. At para. 64 of his judgment, Hardiman J. compared the facts in Hayward v. Thompson to those before him in Bradley. He stated that the only thing lacking in the first article was an express statement as to the identity of the people in question and that this information was later supplied by the same author and publisher in a subsequent edition of the same newspaper allied to which the second article had boasted of being the first to reveal in its original article that the brothers who were then named were the subject of a “massive” Criminal Assets Bureau investigation.
49. At para. 69 of his judgment, he stated as follows:-
“[69] This does not mean, however, that evidence that the same author and publisher have published a subsequent article linking the plaintiffs by name to the allegations previously made of two unnamed brothers of the same age as the plaintiffs, who are also brothers of the stated ages, is inadmissible and must be excluded from consideration in an action based on the first article. To do so would be highly unrealistic, in the sense that it would exclude from the jury’s consideration material which every person of normal intelligence would consider relevant to the question, who was the first article published about? It is one thing to say that intention is neither necessary nor sufficient to constitute a libel: it is quite another to say that a specific article undoubtedly published in the same newspaper by the same journalist, who was an employee of the same defendant, must be excluded from consideration on the question of identification.” (my emphasis added)
50. Accordingly, it is well established law in this jurisdiction that a plaintiff can seek to rely upon a second article published by the same newspaper for the purposes of establishing the identity of the person about whom an earlier article was published. However, the decisions in Bradley and Hayward provide no support for the approach which the High Court judge was urged to take by the plaintiffs in the present proceedings when called upon to consider the outside boundaries of the meanings that the reasonable reader might attribute to the article of the 16th June, 2013.
51. Mac Eochaidh J. was urged to consider the meaning of the article of the 16th June, 2013 not merely by reference to the impression that that article’s own headlines, “get up” and captions would likely have on the reasonable reader, as in Travers, but based first on the assumption that they had read the earlier article and as to the likely impression that that article would have had on them when it came to their consideration of the imputations and meanings that might be borne by the later article. In other words, the High Court judge found that the article of the 9th June was to be part of the “context” for the purposes of considering the meaning to be attributed to what was published in the article of the 16th June, 2013.
52. It is certainly true to say that there are cases in which a plaintiff may seek to rely on more than one article published by the same newspaper to establish the imputations and meanings for which they contend. The following is what is stated in Gatley on Libel and Slander (12th ed., Sweet and Maxwell 2013) concerning that entitlement at para. 32.27:-
“Where either party relies for meaning on more than one article in the same newspaper, the key issue is whether the articles are sufficiently closely connected to be regarded as a single publication, and it makes no difference of principle whether the articles are on continuation pages or a different part of the same newspaper. So also in the case of an internet libel, where it may be appropriate to put in any other page from which the reader would have proceeded (e.g. by hyper-link) to the words complained of. Articles in other issues of a newspaper, before or after the article complained of, may on occasion be properly regarded as part of the context, for instance where the article is part of a series. Where the libel is contained in a letter, a previous letter (referred to in the letter complained of and read by the publishee of the alleged libel) may be put in evidence.”
53. The first of these scenarios would appear to involve an assessment of whether the reasonable reader who has read one of two articles concerning the same matter in a particular paper on a given day is likely to have read both such that the impression created by one can likely be stated to have influenced their impression of the other. Matters such as whether the articles refer to each other might prove material. However, the articles, the subject matter of the instant proceedings, do not fall into this category as they were written a week apart even if there is a reference in the article of the 16th June 2013 to the fact that: “Last week the Sunday World revealed how Rogers and former top cop Benny Gilchrist are at the centre of the case”. There was nothing in the article of the 9th June, 2013 to indicate that its content might be relevant to anything which might later be published concerning Mr. Gilchrist or Ms. Rogers. It was published as a stand-alone article.
54. The decision of the English High Court in Galloway v. Telegraph Group Ltd. [2004] EWHC 2786 (QB) is a good example of the second scenario referred to by Gatley above. That was a case in which the plaintiff successfully established his entitlement to have the jury bear in mind, when it came to consider the meaning of articles published by the newspaper on a particular day, the impression created by other articles published about the plaintiff in the same newspaper the previous day.
55. Eady J. explained that such an approach was warranted on the facts of that case because the law requires that the natural and ordinary meaning of words should be determined by reference to the context in which they were published. He set this out as follows:-
“48. Context is always important. In order to determine the natural meaning of the words of which a claimant complains, it is necessary to take into account the context in which they were used and the mode of publication. Thus, a claimant cannot seek to isolate a passage in an article, and complain of that alone, if other parts tend to throw a different light on that passage: see e.g. per Lord Bridge in Charleston v News Group Newspapers [1995] 2 AC 65, 70.
49. Context is perhaps especially important in this case, where the Claimant is complaining of parts of newspaper articles spread over two days and consisting of a total of thirteen pages. The context would thus include other parts of the coverage of which no complaint is made. In particular, it is necessary to take account of the content of the Baghdad documents (set out above) which were reproduced in the newspaper for readers to consider.
50. Furthermore, when judging the meaning of the 23rd April articles, it is necessary to bear in mind that many readers will have had a general impression of their reading from the day before. It is legitimate to take that into account when assessing the meaning of the second day’s coverage. The reverse is not the case, since it is not permitted when attributing a meaning or meanings to a published article to refer to subsequent material.”
56. However, it is important to recognise just how unusual the facts of Galloway were. The perceived importance of the story was such that the newspaper gave over thirteen pages on two successive days to what I will describe as a highly charged report concerning Mr. Galloway’s alleged financial involvement with the Saddam Hussein’s regime. I should say that it is not clear from either the High Court decision or that of the Court of Appeal whether the articles printed on the first day gave any indication that the story would be continued the following day. Clearly if such an indication had been given the reader would have been encouraged to carry over their consideration of Mr Galloway’s conduct to the following day, much like what would occurr where a story is serialised.
57. However, regardless of whether there was, or was not, an indication that the story would be followed up the following day, the facts in Galloway are very different from those which arise in the present procceedings. While the first article of the 9th June, 2013 was indeed a large exposé covering two pages there was no indication that it was to be, for example, the first of a two part series concerning the conduct of Mr. Gilchrist and Ms. Rogers. Neither did it suggest that the story would be continued the following week at which point further “revelations” would be made such that the reader might be expected to hold in their head all that had been published until the following week. There was nothing in the article of the 9th June, 2013 from which it could be inferred that the person who had read it would, when they purchased the next issue, be looking to find anything further written concerning the plaintifffs.
58. Even if it be the case that a court should assume that the hypothetical reasonable reader buys the same newspaper each Sunday, is it to be assumed that they read every article every week and remember its contents so that if they should come across an article about a matter which happened to be the subject matter of an article the previous week they should have remembered it with sufficient particularity so that it is safe to assume that their impression of the second article was informed by an accurate impression of the first? I suggest not.
59. There would simply be far too many variables if this was the approach to be taken. The articles under consideration on the present appeal are simply not sufficiently proximate or otherwise connected to each other to warrant the approach taken by the High Court judge which was to conclude that the article of the 9th June was part of the relevant context to be considered when seeking to attribute meaning to the article of the 16th June, 2013.
60. Accordingly, and particularly in light of the fact that no clear legal authority has been produced to support the position advanced by the plaintiffs on facts equivalent to those which arise for consideration on this appeal, I have come to the view that it would be wrong in law if a jury in these proceedings was to be permitted to rely upon the article of the 9th June, 2013 when it came to its consideration as to the imputations or meanings which might reasonably be borne by the article of the 16th June, 2013. It is noteworthy that the plaintiffs do not argue that the imputations and meanings for which they contend can only be sustained in reliance on the context created by the article of the 9th June, 2013.
61. I should also state that the fact that the earlier article of the 9th June. 2013 will, in any event, be before the jury because of the separate claims for defamation stated to arise from that publication, is not a valid reason for contending that the jury should be permitted to consider the meaning of the later article by reference to the earlier one. That, in my view, is legally impermissible and would risk a wholly, unjust result.
Is the article of the 16th June considered in isolation from the article of the 9th June, 2013 reasonably capable or supporting the imputations and meanings pleaded?
62. Given that the High Court judge erred in law when, for the purposes of considering the Newspaper’s application under s.14 of the 2009 Act, he considered the meanings of the article of the 16th June, 2013 in the context of the impression that the article of the 9th June would likely have had on the reasonable reader, it might well be said that the s. 14 application ought properly be referred back to the High Court for a re-consideration of the application absent any consideration of the article of the 9th June, 2013. However, the trial of these proceedings is due to take place later this month and in circumstances where this Court has heard this particular issue fully argued by the parties, I am satisfied that the justice of the case is best served for this Court to address the issue de novo.
63. Having fully considered the submission of the parties and the relevant authorities, and in particular the decisions in Lewis and Griffin, I am not satisfied that the article of the 16th June, 2013 is capable of bearing the imputations and meanings contended for by Mr. Gilchrist at paras 9(a) and (b) and 10(a) to (d) of his statement of claim or those contended for by Ms. Rogers at paras.7(a) to (h) of her statement of claim.
64. In Lewis, the newspaper reported that the Fraud Squad was enquiring into the affairs of a limited company of which Mr. Lewis was the chairman. In his proceedings, Mr. Lewis alleged that the words in their ordinary and natural meaning meant or were understood to mean that he had been guilty of fraud or dishonesty. The Newspaper inter alia denied that the words meant or were capable of meaning that he was guilty of fraud or dishonesty and at the conclusion of the evidence submitted to the trial judge that such a meaning should be withdrawn from the jury. The trial judge ruled that the words could bear the meaning alleged in the innuendo relied upon and directed the jury that they might so find.
65. The Court of Appeal reversed the decision of the trial judge and in doing so sought to draw a distinction between publications in which a person was stated to be under investigation and those which imputed guilt with several members of the court giving helpful guidance. The following observations of Reid LJ. at p. 259 are apt in the context of the present case:-
“In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they has read in the newspaper. No doubt one of them might say – ‘Oh, if the fraud squad are after these people you can take it they are’. But I would expect the others to turn on him, if he did say that, with such remarks as – ‘Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn’t trust him until this is cleared up, but it is another thing to condemn him unheard.
What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning. So there was here, in my opinion, misdirection of the two juries sufficiently serious to require that there must be new trials.”
66. For my part, I agree with Reid and Morris LJJ. in Lewis that it is indeed a grave thing to say that someone is fraudulent and that is quite a different thing to say that they are suspected of fraudulent conduct and that the reasonable reader will discern the difference. Whilst I accept that a court must assume that such a reader may occasionally engage in loose thinking, they should nonetheless be credited with knowing the difference between an article which reports that a person is suspected of wrongdoing from the article that implies that thay actually committed that wrong.
67. I have considered the article of the 16th June, 2013 bearing this guidance in mind. The article is replete with references to “investigations” and “allegations” all of which are stated to be material to an upcoming High Court case which would likely throw greater clarity on the conduct of Mr. Gilchrist and Ms. Rogers. In my view, while the reasonable reader might be suspicious (my emphasis) as to whether they were guilty of the conduct alleged, only an unduly suspicious reader would conclude that they were actually engaged in the activities which were stated to be under invesigation. That being so, I am satisfied that the article of the 16th June, 2013 is not reasonably capable of bearing the imputations and meanings pleaded by Mr. Gilchrist and Ms. Rogers. This is particularly so given that the article of the 16th June, 2013 was not one where the Newspaper’s reference to the plaintiffs as being under investigation, a matter which is repeated four times in the article, could in the mind of the reasonable reader have been overborne by any imputation of actual guilt generated by the accompanying photograph. That photograph was a benign one, which was not reasonably capable of imputing actual guilt, as was clearly the case in relation to the photograph in Travers.
68. Finally, it is perhaps worth recording that the High Court judge in making his decision that the article of the 16th June was reasonably capable of bearing the imputations and meanings pleaded, albeit impermissibly influenced by the article of the 9th June, 2013, was clearly influenced by the fact that it was not clear from the articles as to what, if any, investigation/investigations had been or were being carried out into the conduct of Mr. Gilchrist and Ms. Rogers and if so, by whom. However, any confusion in the mind of the reasonable reader concerning the nature of any such investigation was, in my view, irrelevant to his consideration as to whether the meanings pleaded might be permitted to be considered by the jury. Whether or not there was any investigation and if so the nature of that investigation could only have been of relevance if the Newspaper had delivered a defence of truth to a complaint made by the plaintiffs that it was defamatory to say they were under investigation for the conduct referred to in the article. However, no such plea is made and the plaintiffs, as Mr. Quinn described it in the course of his submissions, have instead opted to “go for broke” in alleging that the article imputes or means that they were guilty of the conduct alleged rather than defamatory by reason of reporting that they were, or had been, under some type of investigation for such conduct.
Conclusion
69. For the reasons earlier set out in this judgment, I am satisfied that the High Court judge erred in law when he concluded that in determining whether the article published by the newspaper on the 16th June, 2013 was capable of bearing the meanings contended for by Mr. Gilchrist at paras. 9(a)-(b) and 10(a)-(d) of his statement of claim and by Ms. Rogers at para. 7.(a)- (h) of her statement of claim, that it was legitimate to consider that article in the context of the impression that the earlier article published on the 9th June, 2013 would likely have had on the reasonable reader.
70. Accordingly the High Court judge failed to lawfully rule upon the Newspaper’s applications pursuant to s. 14 (1) of the 2009 Act.
71. In other circumstances it might have been appropriate to remit the Newspaper’s s. 14 applications back to the High Court to be determined there absent any consideration of the earlier article of the 9th June, 2013. However, in circumstances where the plaintiffs’ trials are imminent and this Court has had the benefit of considering all of the materials and submissions as were available to the High Court judge, I am satisfied that the justice of each case is best served by this court determining the Newspaper’s applications de novo in accordance with the prevailing principles.
72. For the reasons earlier stated, I am satisfied that the article of the 16th June, 2013, when considered in accordance with those principles, is not reasonably capable of bearing the imputations and meanings pleaded by Mr. Gilchrist at paras. 9(a)-(b) and 10(a)-(d) and Ms. Rogers at para. 7(a)-(h) of their respective statements of claim.
73. Accordingly, I would allow the Newspaper’s appeals.
Jones -v- Coolmore Stud
[2016] IEHC 329 Ms. Justice Costello delivered on 14th day of June, 2016
Introduction
1. The plaintiff is a former employee of Coolmore Stud, the defendant. The defendant is one of the largest commercial thoroughbred breeding and racing operations in the world and has a wide range of operations in Ireland, the United States and Australia. Its principal place of operations is from a stud farm in Co. Tipperary. Subsequent to the termination of his employment, which I shall explain more fully below, the plaintiff wrote and published a book about the operations and business of the defendant entitled “The Black Horse Inside Coolmore”(“the book”). These proceedings relate to the plaintiff’s book.
2. The plaintiff seeks four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
3. The plaintiff commenced the proceedings by way of plenary summons issued on 13th April, 2016, and by an ex parte motion docket dated 8th April, 2016, he sought reliefs in precisely the same terms as the general indorsement of claim. No interim relief was granted but instead the matter has proceeded before me as an application for interlocutory injunctions as set out above.
4. The plaintiff was an employee of the defendant for nine years. In 2014 he brought a claim arising from his employment before the Labour Relations Commission. The claim was compromised, with the assistance of a Rights Commissioner, and the agreement was reduced to writing on 12th December, 2014. The agreement provides as follows:-
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner.…
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
5. The agreement was signed by both the plaintiff and Mr. David Gleeson on behalf of the defendant. The agreement has been performed by both parties: the plaintiff has vacated the property where he resided upon his retirement and has surrendered keys, equipment, and other property to the defendant. The plaintiff has withdrawn his claim before the Rights Commissioner. The defendant has paid the plaintiff €30,000.00.
6. On 23rd November, 2015, the plaintiff published the book. Prior to its publication by letter dated 8th June, 2015, the defendant’s solicitors, Arthur Cox, reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the agreement of 12th December, 2014. The plaintiff replied by e-mail dated 8th June 2015. He stated:-
“In writing my book I have already received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement.”
7. On 29th July, 2015, Arthur Cox wrote asking if he would send them a copy of the manuscript of his book so that their client could satisfy itself that no breach of the agreement would arise by reason of the publication of the book. The plaintiff responded by e-mail dated 30th July, 2015, stating that he was under no obligation to show Arthur Cox a copy of the manuscript before the book went on sale. In reply, by letter dated 13th August, 2015, Arthur Cox stated:-
“We did not suggest that you were under any obligation to share your manuscript. Our client is however seeking assurance that its contents uphold and abide by the confidentiality agreement signed by both parties, and to ensure the privacy and confidentiality of clients and staff is upheld, and also that it does not contain any defamatory material. …
Please note that our client is committed to and has upheld its responsibilities under the confidentiality agreement.
Furthermore, after the lengthy exchange of correspondence and allegations made by you prior to your retirement, there are reasonable grounds for serious concern that individuals connected to and employees of Coolmore Stud may be defamed by your book.
We would be grateful if you could notify us of the distributors / sales outlets you intend for the publication of your book. We consider that it is reasonable and fair for them to be made aware of their liability in law if any defamatory material is contained in the publication, and it will advise them of same accordingly.”
8. The plaintiff replied by e-mail dated 14th August, 2015, stating:-
“I refer to your email dated 13 August 2015. I have previously stated my position and I believe your email is an attempt to harass and intimidate me. I have considered your reference to a liability in law for anyone connected with my book and your misplaced belief that you should be able to advise them accordingly. It will not be for you or your clients to decide if I defame anyone either now or in the future and whether connected to Coolmore Stud or a completely separate situation. It would be decided by an Irish court [sic].
I take this opportunity to remind you of point 7 of the agreement between your clients and myself dated 12 December 2014. ‘This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law.’ I am not impressed at all by your intimidation tactics. I will be more than happy to argue the toss with you in open court if that is what you want. It would be great publicity for my book. I also point out that I have an investigative journalist with RTE now shadowing my story, so please don’t think I am on my own.”
9. Arthur Cox wrote again on 19th August, 2015, reminding the plaintiff that the relevant terms of the agreement were not limited to clause 7 but also they would be relying upon clauses 8 and 9. The plaintiff replied by e-mail of 21st August, 2015, complaining that they were trying to harass and intimidate him and that they had already received his answer.
10. The defendant’s solicitors corresponded with Amazon EU Sarl, UK Branch, in advance of the publication of the book. The letter of the 19th August, 2015, was addressed to Amazon UK Services Ltd., Legal Department, and was headed “Re: NOTICE OF DEFAMATORY CONTENT ‘The Black Horse Inside Coolmore’ by William Jones”. The letter stated:-
“Our client is concerned that the Book could contain material which could be defamatory of our client and/or its customers, owners and staff. This letter therefore constitutes a Notice of Defamatory Content under your Conditions of Use and Sale.”
The letter outlined the concerns of the defendant in relation to the book and the potential reputational damage and damage to relationships of confidentiality with their clients which could arise from the publication of the book. The letter went on to state:-
“Having regard to all of the foregoing, we are seeking confirmation from you that Amazon will not distribute the Book until:
1. Mr Jones sends the Book to us for review on behalf of our client; and
2. our client is satisfied that Mr. Jones has not breached his obligations of confidentiality to our client and that the Book does not contain any defamatory material.
In this regard, we undertake on our client’s behalf that our review will be completed within 14 days of receipt of the Book. Please note that our client does not wish to prohibit the distribution of the Book outright, however it does wish to protect its rights and reputation, as well as those of its client.”
11. Amazon replied by letter dated 25th August, 2015, indicating that while it understood the defendant’s concerns it would be merely one of many potential retailers of the book and accordingly it suggested that the proper remedy lay with the author and/or publisher of the book.
12. Thus, prior to the publication of the book the defendant had made clear to the plaintiff that:
i. It was intending to rely upon the terms of the agreement of 12th December, 2014, and in particular clauses 7, 8 and 9 of the agreement.
ii. If the book contained any defamatory material it would make distributors and sales outlets aware of their potential liability in law arising from the distribution by them of defamatory material.
iii. It was not seeking to prohibit the distribution of the book outright, but it was prepared to protect its rights and the reputation of the defendant, its clients, employees, and persons associated with the defendant in reliance both upon the agreement and the law of defamation.
In addition, it is to be noted that the plaintiff stated that he had taken legal advice with regard to the contents of his book.
13. On 23rd November, 2015, the plaintiff published the book. It is the defendant’s case that in publishing the book the plaintiff is in breach of the agreement of 12th December, 2014. The book breaches the undertaking as to confidentiality, it discloses records relating to animals or clients of the defendant and it is replete with derogatory comments about the defendant. In addition they complain that the book contains material which is defamatory both of the defendant and other parties and contains material which infringes the copyright of a number of third parties. The plaintiff denies all of these allegations as I shall discuss more fully below.
14. However, the defendant elected not to sue the plaintiff, the author of the book, or his company, Gold Rush Publications Ltd., the publisher of the book. Instead it wrote to various distributors of the book, advising them of the fact that the book contained material which breached the defendant’s legal rights and which was defamatory. On 26th November, 2015, Arthur Cox wrote to Amazon, stating:-
“Our client and its legal advisors are reviewing the [book] but it is already clear that the [book] breaches our client’s legal rights causing serious damage to our client, its employees and other persons associated with our client. Our client considers that by this publication, Mr Jones has breached confidentiality obligations which Mr Jones owes to our client, secondly, that the content of the [book] is defamatory and damaging to the reputation and good name of our client and its employees and thirdly, it breaches the intellectual property rights and privacy of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.…
We are obliged to put you on notice that if the [book] is not removed from sale on the Amazon website having been put on notice of its defamatory content, our client may be obliged to hold Amazon liable for the damage caused by any ongoing sales that are made through its website.”
15. This letter was followed up the following day by a further letter sent by email on 27th November, 2015, which stated, inter alia:-
“We have also spoken directly with customer service of Amazon today in order to emphasise the necessity that this issue is dealt with as a matter of urgency and have been informed that your legal department has been contacted to notify them that this is a matter to be dealt with as a matter of priority. Our client is extremely concerned that the [book] remains listed for sale through your website despite the fact that you have been on notice of its defamatory content since yesterday and were put on prior notice since 19 August 2015. We also confirm that the Irish book stores and online retailers that we are aware of that were stocking the book have on being contacted by ourselves on behalf of our client confirmed that they have removed it from sale immediately.”
The letter drew the reader’s attention to seven matters which the solicitors stated were false and seriously damaging to the defendant’s reputation and its relationship with its clients, breaches of copyrights and disclosure of commercially sensitive information and straightforward factual inaccuracies. The letter continued:
“This list is not exhaustive but there have clearly been a serious [sic] breach of our client’s rights which we are pursuing on its behalf directly with Mr. Jones.… You are also on notice that given the steps that we are taking on behalf of our client to notify any book stores that are selling this publication that Amazon may be the only retailer selling the [book].”
16. The defendant’s solicitors wrote to independent retailers in similar terms stating that the defendant considered that the book contained material which was defamatory of it and/or its customers, owners and staff, stating:
“We are hereby putting you on notice of the defamatory content of this publication. Our client also believes that the Book is a breach of confidentiality obligations owed by Mr. Jones to our client and breaches other legal rights including intellectual property rights and privacy rights.”
The letter went on to describe the business of the defendant and the relationship between the defendant and the plaintiff, and went on:-
“Having regard to all of the foregoing, we are seeking confirmation from you that [the retailer] will not sell or distribute this book in the absence of Mr Jones complying with his legal obligations on confidentiality to our client and ensuring that the Book does not contain any defamatory material.…
Please note that if you fail to provide this confirmation, our client may hold [the retailer] liable for any damage suffered by sales of the book through your stores or your website and will rely on this letter to show that you were put on notice of these matters.”
17. Four such letters addressed to four different retailers dated 30th November, 2015, 11th January, 2016, 2nd February, 2016, and 11th March, 2016, were exhibited. The response of Amazon and each of the booksellers was to withdraw the book from sale.
18. The defendant’s solicitors wrote to the plaintiff on 26th November, 2015, stating that the following issues arose:-
“1. The book is defamatory of our client, its employees and individuals associated with our client and the defamatory content is such as may cause enormous reputational damage and a breach of our client’s relationship of confidentiality with its clients. This arises despite the assurances provided by you in previous communications that it would not contain defamatory material.
2. There is clearly a breach of the agreement dated 12 December 2014 between you and our client and in particular, clauses 7, 8 and 9 therein.
3. There is a breach of other rights of our clients, its employees and individuals associated with our client, including a breach of their right to privacy by the publication of personal details in relation to certain individuals and the reproduction of photographs without their permission or consent.”
The letter called upon the plaintiff immediately to cease distributing and selling the book and to recover any copies that had already been distributed and reserved the rights of the defendant to take such legal action as it considered necessary in order to protect and vindicate its reputation and the reputation of its employees and individuals associated with the defendant.
19. In response, on 27th November, 2015, the plaintiff complained that the letter gave him no specific details of what the complaint was about and asked the defendant’s solicitors to provide those details. The e-mail continued:-
“I will point out at this stage, as you will know only too well, that the main defence as far as an accusation of defamation is concerned is the defence of truth. I have not included anything in my book which I am unable to show as the truth.
You are perfectly entitled to commence whatever legal action you want, but please be assured that I am primed and ready to defend what I have written, line by line if necessary.”
20. The defendant’s solicitors responded by letter dated 4th December, 2015, stating that the book contained content which was seriously defamatory of the defendant and which was inaccurate and untrue. It also stated:-
“A further issue which you consistently chose to ignore in your communications with this firm, is that the contents of this book are also in breach of the agreement which you reached with our client on 12 December 2014….
You are clearly in breach of these obligations owed to our client. Your book also infringes other rights including intellectual property rights and privacy rights of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.”
The letter set out the seven matters that were set out in the letter to Amazon in relation to allegations which were said to be false and seriously damaging and which amounted to a breach of copyright or breach of confidentiality obligations or were simply inaccurate. The letter explained why the defendant’s solicitors had written to the retailers of the book in the following terms:-
“We are entitled on behalf of our client to draw to the attention of any third party who may be involved in the distribution or sale of this book, the fact that this book contains defamatory content, which is untrue, breaches your obligations of confidentiality to our client and also infringes other rights of our client, its employees and other person [sic] associated with our client. Once those parties are on notice of this content, they have a potential liability to our client if they decide to continue selling the book. That liability is independent of any liability that you may have to our client in respect of being the author and publisher of the book. That is a matter between ourselves and the book sellers and our client has no intention of changing that position.”
21. It is clear therefore that the plaintiff had been plainly informed of the defendant’s position and of its justification for the manner in which it chose to deal with this book. The plaintiff does not accept that the defendant is entitled to act as it has done and continues to act. The plaintiff is of the view that his book is not defamatory because he says he can prove the truth of the contents of the book. He objects to the fact that the defendant would not sue him for defamation but instead instructed its solicitors to write to the various booksellers stating that the book contained defamatory material and, as he saw it, threatening them so that they were bullied into withdrawing the book from sale. He said that they were wrong to threaten the bookshops and that they should have gone to court and sued him. Furthermore, they had failed to specify fully what they say was defamatory. He therefore instituted these proceedings seeking the relief I have set out above. Initially he sought it on an ex parte basis but the matter has proceeded before this Court on an interlocutory basis.
The Law
22. Since Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 the test for the grant of a prohibitory interlocutory injunction has been that the applicant must establish:
i. that there is a fair question to be determined at trial concerning the existence of the right which he seeks to protect or enforce by injunction;
ii. that damages are not an adequate remedy;
iii. that the balance of convenience lies on the side of the granting of the injunction.
However, where a party seeks a mandatory injunction the Supreme Court held in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137 that the moving party must establish that he has a strong case in order to obtain a mandatory injunction. In Bank of Ireland & Anor. v. O’Donnell [2015] IECA 73, at para. 105 of the judgment, the Court of Appeal held that where:-
“the substance of respondents application for the interlocutory relief sought was mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.”
23. The first relief sought by the plaintiff is a prohibitory interlocutory injunction. The second and fourth reliefs in substance are mandatory injunctions in that they seek to compel the defendant to do something. I am thus satisfied that in respect of the first relief, the appropriate threshold to apply is the Campus Oil test of whether the plaintiff has established that he has a fair or arguable case. In respect of the latter two reliefs, he must establish that he has a strong case. It is not open to the court to grant a declaration at an interlocutory stage and the plaintiff has not advanced any basis for such relief at this stage in the proceedings.
Has the plaintiff established an arguable case?
24. The plaintiff alleges that the writing of letters to booksellers by the defendant’s solicitors is wrongful on a number of grounds. Firstly, he says it is incorrect to state that the book is defamatory as the book cannot be defamatory unless and until a court of law holds that it is defamatory. Secondly, he has a good defence to the allegation that the book is defamatory as he is in a position to establish that the book is true and therefore it cannot be defamatory. Thirdly, he says that the defendant ought to sue him in defamation rather than threaten booksellers. Fourthly he says the defendant should give details of what the defendant says is defamatory in the book. None of these arguments establishes an arguable case.
25. Even if a party has a cause of action against another party, there is no obligation on that party to sue. Therefore, the fact that the defendant has chosen not to institute defamatory proceedings against the plaintiff cannot constitute a wrongful act on the part of the defendant giving rise to a cause of action by the plaintiff against the defendant.
26. The defendant has written to third parties complaining about the book on various grounds as set out above. These letters were not improper letters to write. Still less, do they establish an arguable cause of action against the defendant. If a party has been defamed, it is appropriate to write a letter asserting that the publication was defamatory and calling upon the publisher of the defamatory material to withdraw the publication before instituting proceedings. Inevitably such a letter would have to assert defamation prior to the fact of defamation being established at trial. It simply cannot be correct that a party cannot protect his rights by asserting that he has been defamed and calling upon a party to remedy the alleged wrong on the grounds that a court has yet to hold whether or not the material is defamatory of the plaintiff. The argument is circular and means that a party defamed can never seek a retraction or apology prior to succeeding at trial. This is clearly not so.
27. The right to send such a letter is inherent in the right of access to the courts. Furthermore, it is implicit in the Defamation Act 2009. Section 27 affords a defence of innocent publication. It provides as follows:-
“27.— (1) It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.”
28. The seller of defamatory material is potentially liable to a defamed person for publishing defamatory material separately from the liability of the author of the defamatory material. Section 27 of the Act was inserted to afford a defence to a person, such as a retailer, who did not know and had no reason to believe that what he did caused or contributed to the publication of the impugned statement. It is inherent in this section that the person claiming to be defamed may notify any such third party publisher of his belief that the statement is defamatory of them. It is then a matter for the third party publisher to make his or her own assessment as to whether or not to publish the statement. This means that the person alleged to be defamed may be protected against further unwitting- and unintentional- publication of defamatory material on the one hand, and that publishers of potentially defamatory material are given a fair opportunity either to withdraw or cease the publication concerned, or to proceed, but in the knowledge that the defence of innocent publication may no longer be available to them. I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book.
29. The plaintiff says that he can prove the truth of the contents of the book and accordingly the letters in dispute are wrong and the defendant’s solicitors had no right to send the letters on behalf of the defendant. The fact that a party may have a full defence to a letter threatening proceedings does not mean that the writing of such a letter itself ,whether to the party concerned or a third party, gives rise to a cause of action. It is possible that a letter written without any justification, mala fide and with a view to causing damage to another party rather than a bona fide defence of the rights of the letter writer, could give rise to a cause of action but that is very far from the case here. The evidence establishes that the defendant has at all times been anxious to rely upon the agreement of 12th December, 2014, and to defend itself, its staff and persons associated with it from defamation. This is entirely legitimate and in the circumstances the writing of the letters in question does not give rise to a cause of action by the plaintiff against the defendant.
30. Finally, it is not necessary to set out in such a letter the entire case in defamation as it will be pleaded if the matter goes to court. Therefore the plaintiff’s complaint that the defendant has not detailed every matter which it says is defamatory cannot give rise to a cause of action by him against them.
31. The matter might well be different if the publisher of material said to be defamatory was genuinely anxious to remove offending material from a publication so that the work could be published without defaming anyone. That is not the case here. The plaintiff’s correspondence with the defendant’s solicitors and his submissions to court shows that he does not admit that any of the contents of the book is defamatory and he will, if necessary, seek to prove the truth of everything he has said in the book. As the plaintiff does not wish to engage with the defendant to try to agree what he may or may not publish, the request for particulars, for such in effect it is, is not made with a view to resolving the dispute between the parties. It follows that no useful purpose would be served by the defendant detailing each and every item which they allege ought not to be published on the grounds that it is defamatory. In any event, this argument also overlooks the fact that the defendant says that the plaintiff is not entitled to publish the book on the grounds that it breaches the terms of the agreement of 12th December, 2014.
32. In summary, the plaintiff has not established that he has an arguable cause of action against the defendant and on that basis he is not entitled to an interlocutory injunction against the defendant. As I have held that the plaintiff has not established an arguable case and therefore is not entitled to the first relief he seeks, it follows that he also has failed to establish that he has a strong case for relief as required by Maha Lingham and therefore he is not entitled to reliefs 2 and 4 of his notice of motion on this basis also.
Are damages an adequate remedy?
33. It is well established law that a plaintiff will be refused an interlocutory injunction if, were he to succeed at full trial, the financial loss suffered by him between the date of the refusal of the interlocutory relief sought and the date of judgment would be quantifiable in money terms. It is clear that this is the case in respect of the plaintiff’s claim. In his e-mail of 7th December, 2015, he stated that he would hold the defendant “responsible for any lost sales of my book from the date the book was withdrawn from any shop or website and I will be taking legal action for damages as a result.” He concluded by stating that if the defendant did not retract its communications with bookshops and websites he would “pursue a claim for damages for any losses and costs I incur as a result.” He followed with a further letter on 4th January, 2016, stating that he would make “a substantial claim for damages as a result of [the defendant’s] actions”. Quite apart from the fact that this correspondence suggests that the plaintiff himself believes that the damage he may suffer will be measured by loss of sales of the book and therefore is quantifiable, in a letter of 11th March, 2016, written to the defendant’s solicitor, the plaintiff stated that he had “now all but sold out of the first edition of [his] book”, so the substance of his claim is open to question.
34. The nearest he comes to making a claim that his losses do not sound in damages is to be found in para. 15 of his affidavit when he stated that as a result of an article appearing in the Sunday Times on 3rd April, 2016, he had an opportunity of a deal with “the largest book wholesaler in the UK to have my book distributed anywhere in the world.” He gave no detail in respect of this possible deal other than to say that he would be unable to secure the deal “with the threats made by the Defendant’s solicitors hanging over bookshops and websites.”
35. While I acknowledge that the plaintiff is representing himself, nonetheless I may only act upon the evidence put before me. The plaintiff has had a number of weeks in which to present his case and in which to reply to the affidavits filed on behalf of the defendant in opposition to his application. There is no evidence before the court which would justify me in concluding that damages would not fully satisfy the plaintiff’s claim were he to succeed at the trial of the action. Accordingly, on this ground also his claim to relief must be refused.
Equitable relief
36. Injunctive relief is equitable relief and a court will not grant equitable relief where the party seeking the relief has himself behaved in an inequitable fashion. In this case the defendant’s primary objection is that the plaintiff has acted in breach of the agreement of 12th December, 2014, in publishing the book. It submits that the plaintiff is not entitled to equitable relief which has as its object and effect the protection of breaches of negative covenants binding upon him. Mr. David Gleeson swore the principal affidavit on behalf of the Defendant. At para. 6 he avers:-
“The Book contains multiple references to records relating to animals or clients of Coolmore and contains numerous derogatory comments about Coolmore, its employees and persons associated with Coolmore.”
37. In para. 10 of his affidavit he quotes comments which are derogatory of Coolmore, its employees and persons associated with Coolmore at pp. 70, 113, 121, 123, 137, 147, 148 and 270 of the book. He states that these are illustrative but not exhaustive. Having read these comments, I am in no doubt that they are derogatory of the defendant and persons associated with it and prima facie constitute breaches of the agreement.
38. At para. 9 of his affidavit Mr. Gleeson gives two examples from the book of material relating to animals and clients of the defendant which he says was published in breach of the agreement. Pages 89 – 90 of the book discloses information regarding an operation carried out on the stallion Galileo, information regarding Galileo’s daily routine, his foals and the defendant’s breeding practices. At p. 116 the book discloses information regarding certain clients of the defendant who entered into a foal sharing deal with the defendant in relation to the stallion Sadler’s Wells.
39. In answer to the allegation that the publication of the book constituted a breach of the agreement of 12th December, 2014, quite apart from any issue of defamation, the plaintiff asserted that he was not bound by the terms of the agreement as the agreement had been procured by duress. This cannot provide an answer to the clear express terms of the agreement. In the first place, the plaintiff has received benefit under the agreement. He cannot now ignore it and he has not sought to set it aside. Accordingly he remains bound by it. Secondly, in correspondence with the defendant’s solicitors he himself purported to rely upon the agreement and made no assertion that the agreement was void for duress until 7th December, 2015, one year later. Thirdly, he has given no sworn testimony to this Court to support the assertion that the agreement was procured by duress. The sole reference to duress is in the letter of 7th December, 2015. On the other hand he confirmed in oral submissions what is recorded in the agreement: that he had the opportunity to obtain legal advice at the time and declined to accept it.
40. In addition the plaintiff submitted that he was entitled to refer to information that was in the public domain despite the terms of the agreement of 12th December, 2014. It is no answer to the obligations set out in clause 8 to state that the information in respect of world renowned horses is already in the public domain. The use of the material is in breach of this agreement regardless of the fact that the information may or may not be readily available to other persons.
41. As things stand I must proceed on the basis that there is an existing valid agreement and quite clearly the actions of the plaintiff in publishing this book amount to grave breaches of that agreement.
42. The defendant also adduced evidence that the book breaches the copyright of four individuals who have sworn affidavits in support of the defendant in these proceedings. The affidavits establish that there was considerable plagiarism of the book “Northern Dancer: the Legend and His legacy” by Ms. Muriel Lennox. The plaintiff was aware of the fact that he was required to obtain her permission prior to using her material as he submitted that he had contacted her and asked for her permission to use the material but had received no reply. It would appear that he did not attempt to contact the other three individuals who have shown in their affidavits that their writings in respect of which they asserted copyright were copied verbatim or virtually verbatim by the plaintiff in his book. The plaintiff has not produced any evidence controverting this evidence.
43. It follows, that if the plaintiff were to obtain the injunctive relief he seeks, the court would be assisting him in relation to clearly established breaches of an agreement which has been performed by both parties and under which the plaintiff received a benefit. It would also involve affording protection to a work which itself infringes the copyright of four individuals. Even if the plaintiff satisfied the tests required in Campus Oil and Maha Lingham, which he has not, in my judgment it would not be appropriate for a court to grant equitable relief in these circumstances.
44. Finally, it is relevant to note that the plaintiff has chosen not to avail of the opportunities afforded to him to resolve any issues between himself and the defendant outside of court. The correspondence both prior and post publication reveals that the plaintiff had little interest in abiding by the terms of the agreement of 12th December, 2014. On the contrary, it indicates that if anything, he was anxious for the defendant to sue him. He clearly welcomed the opportunity to argue a defence of truth in defamation proceedings which he anticipated the defendant would bring against him in respect of his book. In the event, his wish was not fulfilled due to the approach adopted by the defendant as I have outlined in this judgment. In the circumstances, it is open to the Court to conclude that these proceedings were brought because the plaintiff was frustrated by the failure of the defendant to sue him for defamation and not because he had a genuine belief that the defendant had acted wrongfully towards him. It is of course important to note that it is not open to the plaintiff to sue the defendant in respect of any wrongs allegedly perpetrated by the defendant to third parties such as Amazon or the various booksellers contacted by the defendant.
45. For these reasons, I refuse the application.
McAlpine v Bercow
[2013] EWHC 1342 (QB) (24 May 2013)