‘A MAN MUST TAKE CARE NOT TO DEFAME HIS NEIGHBOUR’: THE ORIGINS AND SIGNIFICANCE OF THE DEFENCE OF RESPONSIBLE PUBLICATION

* ERIC DESCHEEMAEKER

I INTRODUCTION

If one development had to be singled out as being the most significant that the English law of defamation has undergone since the Second World War, it is likely that the carving out of a defence of responsible publication on matters of public interest would win the vote of most observers. Originally recognised in the case of Reynolds v Times Newspapers in 1999,1 and later put on a statutory footing by the Defamation Act 2013 (UK),2 the defence — that has been known under various labels, such as ‘Reynolds privilege’, ‘responsible journalism’3 or, most recently, ‘publication on a matter of public interest’ tout court — has had a major impact on the legal position of defendants having published to the world at large factual incriminations that, as often is the case, they are not prepared to defend in court as true:4 they will now be allowed to escape liability provided these allegations concerned a matter of public interest and they acted responsibly in publishing them. In that, it has been the most important single factor contributing to the — long expected — ‘recentering’ of the law of defamation in England.5 It is this defence, distinct from (albeit rooted in) traditional qualified privilege, that the recent Act has now set in stone.6 While the language used in the Act is markedly different from that of the earlier common law, creating potential for obfuscation, in substantive terms what it did was simply codify the existing law while eliminating the judicial list of ‘markers of responsibleness’ which had, in the opinion of the draftsmen, become more of a hindrance than a help.7

* Reader in European Private Law, University of Edinburgh. 1 Reynolds v Times Newspapers Ltd and Others [2001] 2 AC 127 (HL). The decision of the Court of Appeal is reproduced at 135ff. 2 Defamation Act 2013 (UK) s 4. 3 The phrase is an improper (if convenient) shorthand, for the defence is in no way restricted to journalists or media defendants, even though they will in practice be its main beneficiaries. It is not found in Reynolds and is generally attributed to Lord Phillips in Loutchansky v Times Newspapers (Nos 2–5) [2002] QB 783, [36]. However the terms ‘responsible journalist’ and ‘irresponsible journalism’ can be found as early as Austin v Mirror Newspapers Ltd [1986] AC 299, 318 (Lord Griffiths) (Privy Council (Australia)): the context was the interpretation of section 22 of the Defamation Act 1974 (NSW), on which see below, 14. 4 The practical impact of Reynolds was explored in Russell L Weaver, Andrew T Kenyon, David F Partlett and Clive P Walker, The Right to Speak Ill: Defamation, Reputation and Free Speech (Carolina Academic Press, 2006), ch 8. The book also explores related Australian and American developments. 5 The expression is borrowed from Alastair Mullis and Andrew Scott, ‘The Swing of the Pendulum: Reputation, Expression and the Recentering of English libel law’ (2012) 63 Northern Ireland Legal Quarterly 27. 6 Because s 4 of the Defamation Act 2013 (UK) does not extend to Scotland, the common-law defence does however survive, for the time being, ‘North of the Border’. 7 See further below, 247ff. 240 University of Queensland Law Journal 2015

As its very name indicates, the defence of responsible publication on a matter of public interest has a ‘breadth’ and a ‘depth’. Its breadth is its scope of application: this will be matters held to be in the public interest.8 While ‘public interest’ is a notoriously elusive category that has never been authoritatively defined,9 the concept is an old one within the law of defamation, which the defence does not alter. Nor it is surprising that publication to the world at large should be made to hinge on some idea of the public’s interest in receiving the statement, just as publication to a closed group of people has traditionally been regarded as conditional on such people’s interest in its being communicated to them. Accordingly, the question of the breadth of the defence will not be pursued further. Rather, the emphasis will be on its depth, that is to say, the condition on which the defence will bite within its scope of application. According to its name, it is that the defendant should have acted ‘responsibly’ in publishing the incrimination. Again, this is not a self-explanatory requirement; besides, the Defamation Act 2013 (UK) has brought in two complications that will need to be examined more closely. Firstly, it repudiated the leading judicial attempt that had been made to flesh out what responsibleness means in the context of the defence, namely, Lord Nicholls’ 10- pronged test as expounded in the House of Lords in the seminal case of Reynolds.10 Secondly, it actually eliminated in the last stages of the parliamentary process the qualifier ‘responsible’ from the name of the defence, which is now simply known as ‘publication on matter of public interest’. Subject to these changes which, it will be argued, are formal rather than substantial, the underlying idea is clear enough: the defence will operate on condition of reasonableness of conduct. It is a plea of diligence or, to put the same idea differently, of lack of negligence. In recognising the plea ‘but it wasn’t my fault!’, the defence recognises that lack of fault (culpa) operates to — literally — ex-culpate the defendant. Much having already been written on the practical significance of the defence, this paper proposes to focus instead on two — distinct but entwined — dimensions of the doctrine which have received comparatively little attention. The first one is its origins: where did this idea that defamation defendants should, in particular contexts, be allowed to escape liability on the basis of a lack of carelessness come from? While the principle might strike the modern reader as utterly unremarkable given the prominence of such a fault standard across the law of torts generally, it is important to highlight at the outset how entirely at odds the idea is with the traditional workings of a cause of action which, historically, had been entirely controlled by malice and its rebuttal.11 It therefore merits an enquiry into its roots. These, as will be seen, lie in developments that occurred in Australia (and specifically in New South Wales) in the

8 The requirement has now been engraved in s 4 of the Defamation Act 2013 (UK). The point had been repeatedly made by courts beforehand: see eg Reynolds [2001] 2 AC 127, 176–7, 179 (CA), 195–6, 214, 224, 239 (HL). 9 As remarked by Lord Nicholls in Reynolds [2001] 2 AC 127, 193 (see however Lord Bingham’s attempt in the Court of Appeal (at 176–7); cf Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013) §15.6). Arguably the concept simply translates the basic intuition we have, that some issues are relevant to people generally whereas others are not: in a layman’s terms, they are ‘none of their business’. It is important to note that public interest need not have the exact same meaning in different contexts, even within the law of defamation. 10 Reynolds [2001] 2 AC 127, 205; for the list of factors, see below, n 45. 11 Paul Mitchell, ‘The Nature of Responsible Journalism’ (2011) 3 Journal of Media Law 19, 19; Eric Descheemaeker, ‘Protecting Reputation: Defamation and Negligence’ (2009) 29 Oxford Journal of Legal Studies, 603, esp 636–9; see further below, part IV.

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early 20th century. The other aspect of the defence that deserves further examination is its significance in terms of tort theory, both within and outwith the law of defamation. This, as just hinted, lies in the process of the culpabilisation of the tort: not the sole example of what the late Tony Weir described as the ‘staggering march of negligence’,12 but by far the most significant in this area. In turn, this convergence towards negligence as the basis of liability in defamation can be regarded as a stepping stone towards the unification of the standard of liability in tort across the divide between property rights (which have long been dominated by it) and personality rights (which historically have developed apart from it). This significance of the carving out of a defence of responsible publication13 will be examined further in the final part of this paper. Before that, the third part will trace — in a broadly reverse chronological order — the intellectual genealogy of the English defence, from the Defamation Act 2013 (UK) all the way down to the case of Macintosh v Dun14 and the Defamation (Amendment) Act 1909 (NSW). Even before that, however, we need to contextualise the enquiry by pinning down with some precision what specific idea it is that is being traced; in order to do so, we need to understand how the defence of responsible publication fits with ‘ordinary’ qualified privilege, malice and generally the structure of the tort of defamation. This will be the business of the next part.

II SETTING THE SCENE: RESPONSIBLE PUBLICATION WITHIN THE LAW OF DEFAMATION

We begin by looking at the way the defence of responsible publication fits with the broader law of defamation and, in particular, what the standard of liability described as ‘responsibleness’ entails. Because, as was pointed out, the language used by the Defamation Act 2013 (UK) departs from the earlier common law, it will be easier if our examination starts with the status quo ante (ie pre-2013) before examining why the analysis remains valid, despite the language shift, after the coming into force of the Act. This way, difficulties can be sequenced.

A The analytical framework: malice, qualified privilege, truth and pre-2013 Reynolds

Our concern, within the law of defamation, is with statements that are capable of being true, for the privilege originally carved out in Reynolds (which, as will be seen, boils down to what is essentially an idea of reasonable belief in truth), only makes sense when it comes to a matter which is, in Popper’s terms, ‘falsifiable’.15 As far as

12 Tony Weir, ‘The Staggering March of Negligence’ in Peter Cane and Jane Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Clarendon Press, 1998) 97. 13 For the sake of brevity, the focus of this paper being on the notion of responsibleness rather than the scope of application of the defence, the qualifier ‘on a matter of public interest’ will often be omitted. 14 Macintosh v Dun 3 CLR (1906) 1134 (HCA); Macintosh v Dun [1908] AC 390 (Privy Council (Australia)). 15 In English law at least, the line drawn between facts and opinions or comments does not completely dovetail with that between the defences of qualified privilege and fair comment (now officially known as ‘honest opinion’: Defamation Act 2013 (UK), s 3). In particular, it is

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those are concerned, common-law systems recognised, from the time the framework of the modern law emerged in the late 18th century until the second half of the 20th century, only two defences: truth (possibly coupled with an element of public interest) and qualified privilege.16 It is against this remarkably stable background that recent developments are best understood.

1 Malice and its rebuttal

It is crucial to understand where this structure came from, because our understanding of responsible publication hinges on it. Historically, as is well known, the common-law action ‘for words’ (slander) was an action controlled by malice,17 an ill-defined term which appears to have been essentially a form of malevolence or ill- will, the English equivalent of civilian animus iniuriandi.18 Thus, the only ingredients of liability under the action were a defamatory matter published to a third party and malice. But malice was presumed from the publication of the reputation-infringing matter; and the main question for the law became under what circumstances this presumption would be rebutted. Qualified privilege emerged as the principal way in which it could be: in a number of circumstances, which the law defined mostly in terms of a nexus of duties and interest, the occasion on which the defamatory matter had been passed was such as to dislodge the presumption that its publication had been made with malicious intent.19 Because of the circumstances surrounding the publication, it would now be presumed that the defendant had not been activated by malice; however, this prima facie rebuttal could itself be reversed by positively proving such malicious intent.

accepted that an opinion might be true (Sharma v Singh [2007] EWHC 2988 QBD, [24]; cf Gatley, above n 9, §11.20). However, a falsifiable matter cannot be protected by fair comment (ibid, §12.8); accordingly the defence can be ignored in the present context. 16 David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) 185; cf Paul Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005) 145. The category of absolute privilege is better understood as meaning that no wrong is capable of being committed in the first place rather than as a defence properly so called, which operates on the basis of a prima facie wrong and reverses the provisional finding of liability by preventing the cause of action from being completed. However, historically at least, some cases suggest that absolute privilege emerged, similarly to qualified privilege, from the rebuttal of the presumption of malice: see Brook v Montague (1605) Cro Jac 90, 79 ER 77; cf Mitchell, above, 146. 17 Mitchell, Modern Law of Defamation, above n 16, 101ff, 145; Paul Mitchell, ‘Duties, Interests, and Motives: Privileged Occasions in Defamation’ (1998) 18 Oxford Journal of Legal Studies 381, 381ff. 18 Mitchell, ‘Privileged Occasions’, above n 17, 390; Mitchell, Modern Law of Defamation, above n 9, 102; Paul Mitchell, ‘Malice in Defamation’ (1998) 114 Law Quarterly Review 639, 639ff; Ibbetson, above n 16, 115; Bromage v Prosser (1825) 4 B&C 247, 107 ER 1051. On animus iniuriandi, see eg Reinhard Zimmermann, The Law of Obligations. Roman Foundations of the Civilian Tradition (Clarendon Press, 1996) 1067ff. 19 Mitchell, Modern Law of Defamation, above n 16, 151ff. It is important to note that, as the name says, it is the occasion that is protected: neither the party who made the statement or received it, nor its content.

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Outside the objective boundaries of privilege, on the other hand, liability was still for malice which would continue to be presumed.20 In the course of time, the presumption became conclusive, to the effect that the defendant really was strictly liable.21 What this means is that (subject to the issue of truth, which is returned to immediately below), the entirety of the law was supposed to be based on malice; but this internal requirement had almost completely ossified into the doctrine of privilege, which looked not at the defendant’s state of mind but at the objective circumstances in which he had published the defamatory matter. The alternative was then simple: either the statement was privileged and the defendant would only be liable on proof that he had indeed been malicious (‘express malice’) — a notoriously difficult threshold to meet — or it was not and he would then be liable for the mere fact of having lowered the claimant in the estimation of others. The other defence available to the defendant was to prove the truth of the incrimination. The relationship of truth with malice is a difficult one. In the civilian tradition, which historically followed a very similar pattern of liability controlled by malicious intent, presumed but rebuttable, truth coupled with an element of public interest (or benefit) emerged as one of the ways in which the presumption of malice could be displaced.22 While it is clear that truth simpliciter does not rebut malice, the assumption was — rightly or wrongly — that one who speaks words which are true23 and pertain to a matter of public interest can be presumed not to have been activated by ill-will against the person spoken of. However, English law abruptly took a very different turn in the early 16th century when it recognised that, at least as far as the law of defamation was concerned, one had an absolute liberty to speak the truth: in the words of Fitzherbert J in Legat v Bull, ‘if it [= the allegation] is true, he [= the defendant] could well speak it where and when he pleases’.24 Clearly, as would be clarified centuries later by Littledale J in McPherson, this is a rule which goes to wrongfulness and not fault: the reason why one is at liberty to speak the truth about others, defamatory of them as it might be, is not because this shows that one was not malicious but because the law will only protect reputation that is well-founded.25 Australia initially received this position from the motherland, but in New South Wales — the State on which this article focuses because it is where the roots of Reynolds lie — this was altered in 1847,26 Queensland following suit in 1889.27 In

20 A ‘dissenting’ line of cases held that belief in the existence of a privileged occasion could also rebut the presumption, but this can be ignored here: for details see Mitchell, Modern Law of Defamation, above n 16, 158ff. 21 Mitchell, Modern Law of Defamation, above n 16, 101ff. 22 Eric Descheemaeker, ‘“A man of bad character has not so much to lose”: Truth as a Defence in the South African Law of Defamation’ (2011) 128 South African Law Journal 452, 459. 23 Or believed to be true: no distinction was drawn between the two. 24 Legat v Bull Trinity Term 1533 (King’s Bench), 1 Spelman Reports 6; see generally Eric Descheemaeker, ‘“Veritas non est defamatio”? Truth as a Defence in the Law of Defamation’ (2011) 31 Legal Studies 1, 4ff. 25 M’Pherson v Daniels (1829) 10 B&C 263, 272: ‘the truth is an answer to the action, not because it negatives the charge of malice, (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment,) but because it shews that the plaintiff is not entitled to recover damages. For 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’. 26 Libel Act 1847 (NSW), s 4 (‘And be it enacted that in any action for defamation whether oral or otherwise the truth of the matters charged shall not amount to a defence to such action unless it was for the public benefit that the said matters charged should be published’); cf Paul Mitchell, ‘The Foundations of Australian Defamation Law’ (2006) 28 Sydney Law Review 477, 498ff.

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what came to be understood, at least ex post facto, as an attempt to protect privacy,28 New South Wales fell back on the old civilian paradigm of only truth for the public benefit providing a defence (thus ending up, strikingly albeit through a completely different route, in the same place as a jurisdiction like South Africa, which had retained the historical position of the civilian tradition).29

2 Responsible Publication pre-2013: the Reynolds Defence

It is against this background that one can examine more recent developments which started to upset this traditional structure. In Australia, the law evolved primarily through the revamping of existing defences. In New South Wales, a form of statutory qualified privilege was created by s 22 of the Defamation Act 1974 (NSW), building on earlier provisions contained in the Defamation Act 1958 (UK), at the same time as the old common-law qualified privilege was revived, following the eclipse of the prior Act.30 Then, at Commonwealth level, a further strand of protection was added in Theophanous concerning matters of governmental and political interest,31 which was said to be grounded directly in the Constitution and was subjected, importantly, to an additional condition of reasonableness of publication, understood as reasonable grounds to believe in the truth of the defamatory statement.32 In the subsequent case of Lange,33 this defence was retained in essentially the same form but reintegrated into the mainstream of qualified privilege. (Finally, outside the timeframe of this study, a revamped version of the 1974 defence was enacted through the Defamation Act 2005 (NSW) as part of the new Uniform Defamation Acts.)34 In parallel, the defence of truth was complexified through the addition of an additional layer known as contextual truth;35 and truth simpliciter was re-established as a defence across all jurisdictions.36

27 Defamation Act 1889 (Qld), s 16 (‘It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made’). 28 Eg New South Wales Law Reform Commission, Defamation, Report No 75 (1995) §§2.32–2.36. 29 Descheemaeker, ‘A man of bad character’, above n 22, 463ff. Some Australian States followed suit while others retained the traditional stance of English law (for details see New South Wales Law Reform Commission, Defamation, Discussion Paper No 32 (1993) 109ff). Although this was not articulated as such, it would be possible to interpret the position of New South Wales in the same way as the ius commune: namely, that truth for the public benefit, like qualified privilege, are defences to an action for defamation because they rebut the presumption of malice. 30 Defamation Act 1974 (NSW), ss 20–23; New South Wales Law Reform Commission, Defamation, above n 29, ch 9. Various types of statutory qualified privileges also exist in English law, but they are much narrower. In particular there is no equivalent in English law to the important s 22 of the 1974 NSW Act regarding the passing of ‘information’ (for an overview both of the current law and the history behind it, see Gatley, above n 9, ch 16). 31 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. 32 Below, 252. 33 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; below, 12. 34 Defamation Act 2005 (NSW), s 30; cf David Rolph, ‘A Critique of the National, Uniform Defamation Laws’ (2008) 16 Torts Law Journal, 207, 232ff. 35 Defamation Act 1974 (NSW), s 16 (and now Defamation Act 2005 (NSW), s 26); New South Wales Law Reform Commission, Defamation, above n 28, 73.

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In England, by contrast, truth and ‘ordinary’ qualified privilege remained very stable in terms of their underpinning principles. The one significant development was, starting with Reynolds, the emergence of a new defence of responsible publication. Although this was doubted at first, it became widely accepted that it was distinct from qualified privilege:37 indeed it had to be, for the Reynolds privilege — if ‘privilege’ is the right term38 — possessed two features of which at least one, and probably both, were impossible to reconcile with the tenets of qualified privilege. For one thing, the new privilege attached to the subject-matter of the communication rather than the occasion on which it was passed.39 Under the doctrine of qualified privilege, the same matter can be protected when it is passed by A to B but not A to C: this made no sense in the context of the Reynolds defence. Also, and more importantly for the present purpose, where qualified privilege has as its object to raise the standard of liability to (proven) malice, the Reynolds defence was essentially fault-shaped, in the sense of negligence or culpa: subject to possible fine-tuning, its operation was conditional on proof of diligence — or, which amounts to the same, lack of negligence.40 This absence had to be proved by the defendants who wished to avail themselves of the defence.

3 Reynolds and malice

Whether this is compatible with the doctrine of qualified privilege depends on the understanding one has of the relationship between the Reynolds defence (and by extension its post-2013 statutory iteration) and malice, which has been and remains disputed. The dominant view is that proof of malice on the defendant’s part displaced the privilege; the minority position being that the defence was designed in such a way that succeeding under Reynolds meant ipso facto that one was not malicious.41 This disagreement is extremely interesting, for it goes back to the very foundations of the law of defamation.

36 For New South Wales, see Defamation Act 2005 (NSW), s 25; cf Rolph, above n 34, 228. 37 Gatley, above n 9, §15.2 and references cited. This is naturally not to deny that, historically, privilege provided the springboard from which it was developed. 38 The word ‘privilege’ was obviously borrowed from the long-established namesake defence. It remained widely used until the 2013 Act despite its unattractiveness. Etymologically, a ‘privilege’ is a private law: in a society which aspires to equality, this is bound to be connoted negatively and a privilege will easily be regarded as unwarranted. In the phrase ‘Reynolds privilege’, ‘privilege’ had exactly the same meaning as ‘defence’; indeed Lord Hoffmann called it the ‘Reynolds public interest defence’ (Jameel v Wall Street Journal Europe [2007] 1 AC 359, [46]). 39 Ibid. 40 This point is returned to in the section immediately below. In terms of the language used, this was perhaps made clearest by Smith J in Al-Fagih v HH Saudi Research and Marketing (UK) Ltd (unreported) 28 July 2000, [50]: ‘One of a journalist’s duties is to take reasonable care not to publish false information’ (cited in Loutchansky v Times Newspapers Ltd and Others [2002] QB 321, 336). 41 A helpful summary of authorities is provided by Mitchell, ‘Responsible Journalism’, above n 11, 20; cf. Gatley, above n 9, §15.21.

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On one view, suggested by Paul Mitchell,42 Reynolds, being an extension of qualified privilege, was still underpinned by the idea of rebuttal of malice: the defence merely operated a reversal of the onus of proof. This time, it was the fact that the information was in the public interest and was published in a responsible fashion which spurred this reversal. We would then have a rather perplexing situation where diligence (rather than good faith, in the sense of honesty) was required to displace malice. This, to my mind, makes no sense and demonstrates that Reynolds was not and cannot have been rooted in the old model of malice and its rebuttal — or, to put the same point differently, it was not a form of qualified privilege, the very nature of which is to reverse the onus of proof of malice. Indeed there is no suggestion in the judgments which established the defence that this is how it operates. If it is not a form of privilege (which can be abused), there is no reason why lack of malice should be reintroduced as a further requirement of liability. This is the alternative view, seemingly minoritarian but right in my opinion, which was best summed up by Lord Hoffmann in Jameel: no question of malice arises in the context of the Reynolds defence because ‘the propriety of the conduct of the defendant is built into the conditions under which the material is privileged’:43 in other words, whoever is responsible cannot at the same time be malicious. Who is right on this question will ultimately depend on how we define the terms of the equation, that is, ‘responsibleness’ (which was relatively simple at least until the 2013 Act) and malice (which is less straightforward). If malice encompasses motive, in the sense of an ulterior purpose, then it is easy to see how a defendant might be responsible yet malicious: one can construct a perfectly well-researched, fair and balanced story of a defamatory nature solely out of spite for another. But then the question becomes whether it should matter: if the story is objectively in the public interest and objectively written in a responsible fashion, it is not clear at all why any personal animosity, spite or other ulterior motive described by the law as ‘improper’ should be relevant. Indeed, there are judicial pronouncements doubting that it should be.44 On the other hand, if malice is simply about lack of honest belief in truth (in the sense of positive belief in untruth or reckless disregard about whether the statement is true or not), then it becomes much more difficult to see how a Reynolds-proof defendant could have been malicious. We might imagine the odd situation where there was reasonable ground (objectively) to believe a certain matter to be true but the publisher actually happened (subjectively) to disbelieve it; but again it is everything but obvious that liability should follow in such a case. It follows that, if Lord Hoffmann’s view does not represent the law (either pre- or post-2013), it should to my mind, which in turn would mean either decreeing judicially that malice was (and remains) irrelevant to liability under the defence of responsible publication or — which amounts to the same — restricting the scope of malice to the point where, as per Lord Hoffmann’s opinion in Jameel, absence of malice follows from proof of responsible behaviour (in Romanist terms, lack of culpa entails lack of dolus).

42 Mitchell, ‘Responsible Journalism’, above n 11, 20. 43 Jameel [2007] 1 AC 359, [46]. 44 Eg Loutchansky [2002] QB 321, [34].

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B The standard of liability

Having set this difficulty aside, we can turn our attention to the threshold of liability under the defence of responsible publication on a matter of public interest (again, reserving for now the Defamation Act 2013 (UK), which it will be argued leaves this unchanged). Its ‘depth’, as the very name entails, is one of responsibleness. The leading pre-codification attempt on the part of English courts to flesh out what this means was made by Lord Nicholls in the Reynolds case itself, when he set out his 10- pronged test in the House of Lords.45 When one leaves aside the points which go to the definition of the subject-matter (the ‘breadth’ of the defence), what remains goes essentially to the care taken to get one’s facts right and whether it was sufficient in the circumstances of the publication. While already discernible in this seminal test, the twofold dimension was put across with greater clarity and concision in later cases,46 and was perhaps best captured by the Supreme Court of Canada in Grant,47 when it reduced the 10-prong enquiry to a two-limb proposition, one pertaining to the scope of the defence (‘a matter of public interest’) and the other to its threshold: ‘the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances’.48 In other words, when it comes to the depth of the defence, the question is whether there were sufficiently good reasons at the time to believe the defamatory matter to be true.49

45 Reynolds [2001] 2 AC 127, 205. The ten relevant factors to take into account – though the list was said not to be exhaustive – are ‘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’. 46 Eg Jameel [2007] 1 AC 359, [48], [53]: ‘The first question is whether the subject matter of the article was a matter of public interest ... If the publication, including the defamatory statement, passes the public interest test, the enquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair’ (Lord Hoffmann). 47 Peter Grant v Torstar Corporation 2009 SCC 61 (I take it for granted here that the Grant defence is the same as the Reynolds one despite the use of a different label, ‘responsible communication on matters of public interest’). 48 Grant 2009 SCC 61, [98]. 49 It is not strictly necessary, in the present context, to fine-tune the defence: we are looking for the origins of a broad idea, which is clear enough and is bound to have been expressed in slightly different terms. Nonetheless it is useful to justify the phrasing used. In particular, putting the test in an objective rather than subjective fashion avoids unnecessary complications. The alternative would be to say that the publisher reasonably believed in the truth of what he published. This would combine two requirements, one being that he honestly believed in the truth of what he wrote, the other that he checked the facts with a level of care appropriate in the circumstances. But it is dubious whether the former ought to be a requirement: liability should not depend on

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C Responsible publication post-2013: the Defamation Act 2013 (UK) and ‘publication on matter of public interest’

1 A linguistic shift

From the above it appears that, at the time Lord Lester of Herne Hill introduced in Parliament his private bill to reform the English law of defamation (and, in particular, render it more defendant-friendly), the law pertaining to what had come to be known as ‘responsible journalism’ was reasonably well-settled: alongside ordinary qualified privilege, applying to selective publication and conditional on lack of malice, a further defence could be relied on by defendants having published defamatory matter to the world at large, which was for its part conditional on a lack of negligence. A complication, however, involved the fact that the leading judicial attempt to articulate what responsibleness or diligence meant in that context, Lord Nicholls’ above list of ten relevant factors, had a tendency to be treated by lower courts as cumulative hurdles, thereby lowering the standard of liability and, as a result, effectively emptying the defence of at least some of its practical efficacy.50 The first draft of what would ultimately become the 2013 Act was, but for a few tweaks, the setting in stone of Lord Nicholls’ test under the heading of a new statutory defence of ‘responsible publication on matter of public interest’. However, when it finally re-emerged from a parliamentary process which, for a number of unrelated reasons, turned out to be long and convoluted, the ‘section 4 defence’ looked markedly different, if not unrecognisable, from the earlier common law position. Even the qualifier ‘responsible’ had disappeared from the title of the defence, which now provided that:

4 Publication on matter of public interest

(1) It is a defence to an action for defamation for the defendant to show that — (a) the statement complained was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

what, if anything, the publisher happened to believe, but rather on whether the evidence available could have led a reasonable person to believe the defamatory incrimination was likely true. This is consonant with the second limb of the defence, which is not whether the defendant believed the matter to be in the public interest but whether it really was in the estimation of the court.

50 This point was picked up by Lord Hoffmann in Jameel [2007] 1 AC 359, [56].

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2 Interference from ‘Reportage’

I have explained in a different forum what, in my view, caused this abrupt terminological shift.51 Dissatisfaction with the principle of a checklist of factors played a role,52 but much more significant was the interference caused at the worst possible time by the judgment of the Supreme Court of the United Kingdom in Flood.53 The case concerned an action brought by a police officer against a newspaper for publishing the statement that he, Mr Flood, was under investigation following allegations of corruption. The Times reported the (undisputed) fact without taking any stance as to the truth or otherwise of the underlying incrimination.54 Flood was thus a case of what has now come to be described by courts and legal scholars as ‘reportage’, that is to say, the neutral reporting of defamatory allegations made by others, which are not endorsed by the publisher but published nonetheless because the very fact that they were made is regarded as a significant piece of information. (The reason why the non- endorsing publisher can be sued in defamation in the first place is because of the long- standing principle, known as the ‘rule of repetition’, that repeating a defamatory statement is tantamount to making it — even when one makes it clear that it is not a first-hand allegation, and irrespective of any distance that the reporter might put between himself and belief in the truth of the incrimination. For that reason it has to be defended in order to avoid liability; and if a factual incrimination was made to the world at large, this will normally mean either proving the truth of the underlying incrimination or appealing to the new defence of responsible publication.) One principal difficulty with the doctrine of reportage is that, whereas it is plausible to say that repeating an incrimination without endorsing it might (in some circumstances) be a form of ‘responsible publication’, it is ‘responsible’ in a sense that is completely different from the above one of reasonable belief in the truth of the incrimination, which was central to the Reynolds defence but is, by construction, irrelevant in reportage cases. Analytically, the two defences have virtually nothing in common, one being concerned with the making of an incrimination and the other not; and the obvious stance of the law should be to separate them out and recognise reportage as a self-standing defence alongside the ‘reasonable truthfulness’ that undergirds the historical defence of responsible publication. However, whatever the reason might be, neither the Supreme Court in Flood nor the 2013 Act identified the fact that reportage is as distinct from ordinary, Reynolds-based responsible publication as Reynolds was, in its own time, from ordinary qualified privilege (which is not to deny that both piggybacked on the pre-existing set of rules, which is observably true). As a result, they treated reportage as a type of Reynolds privilege, the Act codifying it as a sub-species of publication on a matter of public interest as part of the same section that abolished ‘the Reynolds defence’.55 In order to make this possible, the Supreme Court had to dilute its language to the point where it became vague and unspecific enough to be able to encompass both defences, reasonable belief in truth and ‘warranted republication’, as two species of the

51 Eric Descheemaeker, ‘Three Errors in the Defamation Act 2013’ (2015) 6 Journal of European Tort Law, 24, 33–40. 52 James Price and Felicity McMahon (eds), Blackstone’s Guide to the Defamation Act 2013 (Oxford University Press, 2013) §5.38. 53 Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] AC 273. 54 The nature of the underlying incrimination is itself subject to interpretation but this is irrelevant here. 55 Defamation Act 2013 (UK) ss 4(3) and 4(6).

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one genus of the bonus scriptor ephemeridis.56 Understandably eager to take into account the latest judicial developments, but lacking the time to digest their significance, Parliament simply took this open-textured language over and engraved it in what became the final version of s 4 of the Act. In the end, the new ‘depth’ of the defence was itself defined in terms of public interest: the defendant must have ‘reasonably believed that publishing the statement complained of was in the public interest’. To anyone familiar with the law in this area, the new formulation will appear mystifying because, whatever ‘public interest’ might have meant exactly, it was always concerned, in the context of defamation, with the subject-matter of the statement (a meaning that is still reflected in the first limb of s 4(1) setting out the breadth of the defence). Saying that the defendant must have believed the publication itself (rather than the matter published) to be in the public interest uses the word in a very different sense, which remains undefined but appears to be no more than a general token of approval: a ‘good thing’ as opposed to a ‘bad thing’.

3 No Change in Substance

Where does this leave us in terms of the substance of the statutory defence? The answer is bound to depend on how we interpret the requirement that ‘publishing the statement complained of was in the public interest’. In itself, as just remarked, this is so loose that it could potentially mean almost anything. But Parliament is the best interpreter of its own intentions and, time and again, the preparatory works emphasise that the statutory defence does not aim to alter the law but simply to restate it in its ‘most recent’ — ie post Flood — version.57 In turn, the Supreme Court of the United Kingdom indicated no intention whatsoever in that case to alter the substance of the defence outside of reportage cases. The change of terminology, confusing as it might be, was not effectuated in order to alter the substance of the common-law defence where it did previously apply, but to allow it to widen its reach to a second (and analytically very different) class of cases. The better view is therefore that, as far as the historical ‘Reynolds’ segment of the defence of [responsible] publication on a matter of public interest is concerned, nothing of substance has changed in English law with the Defamation Act 2013 (UK): outside reportage, the defence of publication on a matter of public interest is still one of responsible publication, where ‘responsible’ means ‘based on a reasonable belief in the truth of the allegation(s)’.58 While Lord Nicholls’ test, subjected (perhaps unfairly) to

56 Flood [2012] AC 273, esp [54], [60], [68], [113], [123], [158]. The analysis of the language used by the Court would deserve a paper of its own. 57 Price and McMahon, above n 52, §§5.28, 5.37ff (especially §§5.46–5.47). It is true that other remarks suggest a desire to ‘strengthen freedom of speech’ (§5.45) but this can be reconciled with the status quo by interpreting it as going to the removal of the 10-pronged test, which itself had been misapplied by lower courts: the intention was therefore to recapture the essence of the Reynolds privilege: not change the law but remove a misinterpretation. 58 While some early commentators were led astray (Kee Yang Low, ‘Reynolds Privilege Transformed’ (2014) 130 Law Quarterly Review 24), it is reassuring to see the leading practitioners’ works making this interpretation their own (Price and McMahon, above n 52, §5.56; Gatley, above n 9, §15.4).

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much criticism, is unlikely to be re-used in the post-Act age, the underlying idea of ‘reasonable truthfulness’ remains. It is this idea whose roots we are interested in.59

III THE AUSTRALIAN ORIGINS OF THE DEFENCE OF RESPONSIBLE PUBLICATION

A Prologue: an English Beginning

This part seeks to trace the origins of the above idea of reasonable belief in truth as an exculpating defence in the law of defamation, going back in time by asking of each authority, in turn, what its immediate source was, until no further progress — or regress — can be made. Starting with the post-2013 statutory defence of ‘publication on matter of public interest’, it is evident for the reasons already surveyed that it consists in a revamped version of what was known before the Act as the Reynolds privilege which, as its very name says, originated in the case of Reynolds v Times Newspapers. On the level of principles, no noticeable change to the substance of the defence occurred between the seminal case and its final demise when it was abolished by s 4(6) of the latest Act. Accordingly we can move on straight to the second stage of the enquiry. The context in which the Reynolds defence originally saw the light of day is well- known. The English law of defamation had long been regarded as unduly harsh, especially in respect of defendants having published in a permanent form (libel, hence no need for special harm) and to the world at large — in practice mass medias.60 It had been held repeatedly that only in the most unusual circumstances would they be able to avail themselves of the defence of qualified privilege because, almost invariably, not all of their readers would have had an interest in receiving the defamatory statement.61 The alternative was therefore simple: either they could prove the matter to be true or they would be (strictly) liable on the sole count of its being defamatory. Pressure mounted for reform, especially in the light of the impending enactment of the Human Rights Act 1998 (UK), which was to ‘bring home’ the rights encapsulated by the European Convention on Human Rights, including its Art 10 freedom of speech.62 Time was ripe for reform. The defence which came to be known as responsible publication on a matter of public interest was carved out, for the most part, by Lord Bingham CJ in the Court of Appeal. Lord Lester, as counsel for The Times, had pressed for the adoption of a Sullivan-shaped defence, ie a defence whereby such public officials as politicians

59 While this is clearly a form of reasonable conduct, as applied to the particular case of a publisher of defamatory matter, we also need to be careful because the word ‘reasonable’ is notoriously slippery and underdetermined. As exemplified by the doctrine of reportage, the publisher’s conduct could be judged reasonable on other bases than grounds to believe in the truth of what was published, and so what we need to trace is not the word but a particular meaning. 60 Cf Eric Barendt et alii, Libel and the Media: The Chilling Effect (Oxford University Press, 1997), esp ch 9. The underlying reason for this state of affairs, namely the courts’ fierce antagonism towards a new generation of newspapers in the late 19th century, when much of the modern law was put into shape, is well explained in Mitchell, Modern Law of Defamation, above n 16, 117ff. 61 Reynolds [2001] 2 AC 127, 195. 62 That the Court in Reynolds had an eye on the Act, even though it was not in force at the time the appeal was heard, is transparent: Reynolds [2001] 2 AC 127, 197; cf Gatley, above n 9, §15.3. On the relationship between the common law and Convention rights generally, see Eric Descheemaeker, ‘Mapping Defamation Defences’, 78 Modern Law Review (2015), 641, 647ff.

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would only be able to recover in court on proof of malice.63 This was rejected by Lord Bingham on the basis of its being too narrow in scope but also too deep.64 Instead he devised a defence both broader (covering all matters of public interest, not simply political issues) and more shallow (being defeated by negligence not malice). As mentioned, the novel idea, in an English context at least, was the negligence shape of the defence. Lord Bingham was completely straightforward in admitting he had borrowed it from the recent Australian case of Lange.65 There can be very little doubt, therefore, that at least the immediate roots of Reynolds lie in Australia, where the story now moves.

B Lange v Australian Broadcasting Corporation

Lange,66 like Reynolds, concerned a politician suing a leading medium of mass communication for having published statements which he regarded as lowering him in the estimation of right-thinking members of society. In that instance, as is well known, the plaintiff was a former Prime Minister of New Zealand suing the Australian Broadcasting Corporation for having published in a television programme matter alleging that he had abused his public office and was unfit for his position. Building on the earlier case of Theophanous, which had carved out a new defence, directly grounded in the Constitution, of publishing — even to the world at large — matters of governmental and political interest, the High Court of Australia unanimously affirmed the defence but reintegrated it into the mainstream of common-law qualified privilege. The link was made through the idea that all members of the Australian commonwealth had an interest in receiving ‘information, opinions and arguments concerning government and political matters that affect’ them; likewise all, including juridical persons like medias, had an interest in disseminating such matters.67 However, despite the appearance, the defence was very different from ‘ordinary’ qualified privilege in that it was conditional on a requirement of ‘reasonableness’,68 to be proved by the defendants seeking to avail themselves of the defence,69 and which could be defeated

63 Reynolds [2001] 2 AC 127, 160ff. The reference is to New York Times Co v Sullivan (1964) 376 US 254. Analytically this could be regarded as an extension of qualified privilege to the publication to the world at large of statements of a particular, essentially political, nature, based on the idea that everyone has an interest in receiving them (compare Lange, below, n 66). 64 Ibid 177–8 (‘The view of the law which Lord Lester has urged upon us is in our view both too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion’). 65 Ibid 176 (‘we would not wholly adopt the Australian solution as such, but we attach considerable importance to their adoption of the reasonableness test’). 66 Lange (1997) 189 CLR 520. 67 Ibid 571. 68 Ibid 572. 69 For the reasons mentioned above, to my mind this gives away the fact that, whatever the Court might have said in that case, the ‘Lange defence’ is (like Reynolds and its new statutory iteration in England) a different jurisprudential creature. Extending qualified privilege on matters of public interest to the community at large (which would have been entirely consonant with the traditional underpinning of the defence) would have made such matters unactionable short of proof of express malice and not of lack of reasonableness (ie carelessness). The fact that the defence can be rebutted by proof of malice does not affect the argument.

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by proof of malice.70 The basis for this requirement, historically alien to the common law, was explained by the Court as follows:

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 [1974 (NSW)] is properly to be seen as reasonably appropriate …71

The argument about the special nature of defamation channelled through the media, due to their ability to broadcast to the world at large, is an important one which would deserve more careful examination. Suffice it to say in the present context that I am not convinced either that the premise is right (for what matters most to people is typically their estimation in the eyes of a narrow group of people in a special relationship with them; a casual remark made by a speaker over dinner might be more feared than a news brief in a journal) or that, even if it is, this would be sufficient warrant to take the extreme step of holding two different classes of defendants to two different standards of liability. However, the point that we are interested in tracing here is not the policy consideration but the reference made to the Defamation Act 1974 of New South Wales, which was explicitly cited by the Court as its source of inspiration for the Lange defence.72 Before the next link in the enquiry takes us to that jurisdiction, it is helpful to specify what the Court meant when it used the amorphous term ‘reasonableness’:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing the imputation, 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.73

This is transparently the same idea that will be taken over in Reynolds. In coming up with the above definition, the Court relied primarily on Theophanous74 but, given

70 Lange (1997) 189 CLR 520, 574. 71 Ibid 572. 72 This is not to suggest that the Court could not have got to the same point without it, for example on the basis of the policy consideration alone. This is a ‘what if’ question which no one can answer. The point of intellectual histories is to retrace, not what may have happened (interesting though this might be), but what did in fact happen. 73 Lange (1997) 189 CLR 520, 574. The judgment continues ‘Furthermore, the defendant’s conduct will not be reasonable unless the defendant had sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond’. 74 The relevant passage in Theophanous (1994) 182 CLR 104, 137 reads: ‘the defendant should be required to establish that the circumstances were such as to make it reasonable to publish the impugned material without ascertaining whether it was true or false. The publisher should be required to show that, in the circumstances which prevailed, it acted reasonably, either by taking

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that (as will be seen presently) this is also the way the requirement had been interpreted in the context of the 1974 Act, we can go straight to it without detouring through Theophanous.

C The Defamation Act 1974 (NSW)

Section 22 of the Defamation Act 1974 (NSW)75 concerned the passing of ‘information’, which the doctrine of qualified privilege had been shown to have trouble accommodating, in the sense that there are circumstances where our intuitions suggest that the occasion on which it was passed should be privileged even though it cannot readily, if at all, be fitted within the traditional approach in terms of duties and interests.76 Building on two sub-sections of the Defamation Act 1958 (NSW),77 the 1974 Act created a statutory form of qualified privilege in respect of information, where the issue of privilege would be determined on the basis of reasonableness rather than duties and interests:

(1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to him information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication.

1 The meaning of ‘reasonable’

The key question for us is the meaning of ‘reasonable’ in subsection 1(c). The earlier warning that the word is unstable proves timely in this context because the statutory concept of ‘reasonable publication’ can be shown to have experienced a remarkable shift in meaning.78 The category is an old one within the Australian law of defamation. The 1974 Act clearly borrowed it from s 17(e) of the 1958 Act;79 but it can be found as early as the Defamation Act 1889 (Qld), the first attempt to codify the law of defamation in the

some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps or steps which were adequate’. 75 The Act was abolished by the Defamation Act 2005 (NSW) but the substance of its s 22 formed the basis for s 30 of the new Act. 76 See eg Parliament of New South Wales, Report of the Law Reform Commission on Defamation (LRC 11) (VCN Blight, 1971) §§101ff ; New South Wales Law Reform Commission, Defamation, above n 29, §9.8. 77 Defamation Act 1958 (NSW), ss 17(d) [‘answer to inquiries’] and 17(e) [‘information’]. 78 This was picked up in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697, 797. 79 Defamation Act 1958 (NSW), s 17: ‘It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith— … (e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances’.

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Australian colonies (on which the 1958 Act relied heavily).80 In the context of these two Acts, it is transparent that the term ‘reasonable’ applied to the circumstances in which the information is passed. It was used as a substitute for the traditional, and perennially difficult, duty/interest enquiry. Thus, to return to the above metaphor, it was concerned, not with the depth of the defence, as in Lange, but with its breadth. Its depth was still ‘good faith’, ie essentially lack of malice. This is a very different form of reasonableness compared to the Reynolds sense of responsible journalism. It follows that the 1958 Act of New South Wales and, behind it, the 1889 Act of Queensland are only part of the intellectual genealogy of Reynolds in the weak sense that they provided a peg-word on which further developments came to be hung; substantively they are entirely dissimilar. The transformation of the meaning of ‘reasonableness’ can however be seen as early as the travaux préparatoires of the 1974 Act. In the Committee of the Legislative Assembly examining the Bill, one Mr Mulock, representative for Penrith, proposed an amendment which would have inserted the following clause as a second subsection:

(2) For the purpose of subsection (1) conduct is reasonable if and only if, before publication reasonable enquiries were made as to the truth of the matter and there were reasonable grounds by the person making the publication to hold a reasonable belief as to the truth of the subject matter of the publication.81

Even though the scope of application of the clause was narrower than that of the Reynolds defence, and it had in mind businesses rather than the media,82 the proposed threshold was nonetheless strikingly similar to that which would make its way into Theophanous and Lange, and then in an English context to the House of Lords. This amendment was rejected, but the record does not indicate on what basis, if any. However, slightly later, an almost identical amendment (albeit worded in such a way as to cover all cases of qualified privilege)83 was turned down in the Legislative Council after the condition was held already to be contained in clause 22(1)(c), that is to say, in the requirement of reasonable conduct, thus making the amendment redundant.84 It is therefore fair to say that the phrase ‘conduct … reasonable’ was already understood at that stage in the sense which Theophanous and Lange would later give it. Judicial developments subsequent to the Act confirmed this change in

80 Defamation Act 1889 (Qld), s 17(5). 81 New South Wales Parliamentary Debates (Hansard), 3rd series, vol 108 (1973–4), 854. 82 New South Wales Law Reform Commission, Defamation, above n 29, §9.9; cf Macintosh, below, 16. 83 Hansard, above n 81, vol 109, 1637: ‘No defence of qualified privilege shall succeed unless it is established that the publication was made after reasonable enquiry by the person making the publication and that the defendant has a reasonable belief as to the truth of the matter published’ (D P Landa). 84 Ibid. Ironically, thirty years later, a new, long subsection 2A would be inserted to do precisely what this amendment had purported to do, namely, flesh out the requirement contained in the clause: Defamation Amendment Act 2002 (NSW), implementing some of the recommendations made by the Attorney General’s Task Force on Defamation Law, which had reported earlier that year. New s 22(2A) is transparently inspired by, albeit significantly different from, Lord Nicholls’ 10-pronged test in Reynolds (above, n 45). It formed the basis of s 30 of the Defamation Act 2005 (NSW) — and cognate provisions across the Commonwealth — which however included a further explicitly relevant factor: ‘the nature of the business environment in which the defendant operates’ (Defamation Act 2005 (NSW) s 30(3)(f); cf Rolph, above n 34, 234).

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meaning. The leading case on the interpretation of the provision was Morgan v John Fairfax in 1991,85 where the Supreme Court of New South Wales surveyed a number of relevant cases,86 and went on to say:

in relation to the requirement of s 22(1)(c) that the conduct of the defendant in publishing the matter was reasonable in the circumstances:

…

(4) The defendant must also establish:

(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources.87

It added:

The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one.88

Reynolds is already contained there; one will also note the emphasis on the quality of the belief.89 Although the 1974 Act does not explicitly cite a source for this idea of reasonable conduct in the sense of reasonable belief in truth, it is not difficult to find out where it came from. The idea was undoubtedly taken from s 6 of the Defamation (Amendment) Act 1909 of New South Wales (reprinted as s 30 of the Defamation Act 1912 (NSW)), which itself openly responded to the case of Macintosh v Dun, the last stage of which had occurred the year before. The link, which would be clear to anyone familiar with the Australian debate, is made explicit by the reference to Macintosh in the margin of the 1974 Act.90

D Macintosh v Dun and the Defamation (Amendment) Act 1909 (NSW)

The 1909 Act and the earlier case are the next (and final) links in the present enquiry. It is convenient to consider them together and to start with the case.

85 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 375. 86 In particular Wright [1977] 1 NSWLR 697, which foreshadows Lord Nicholls’ test. 87 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 375, 387–8 (Hunt AJA). 88 Ibid 388. 89 Above, n 49. 90 Defamation Act 1974 (NSW) s 22(3): ‘Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward’. In the margin: ‘cf Macintosh v Dun [1908] A.C. 390’.

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Macintosh91 concerned what in modern terms we would call a credit-rating agency. Its members collected information about the creditworthiness of third parties, which they then sold to their clients. When asked about the claimant, they responded by making a number of unflattering comments, of which the following gives a flavour:

the appellant James Macintosh was commonly and correctly reported to be living beyond his means, and to possess habits and tastes which were likely to bring the appellants and their business rapidly into a state of insolvency. 92

Should the members of the agency be liable for the obviously defamatory statement? The trial judge based himself on the case of Foley v Hall, which similarly concerned a mercantile society (but where the defamatory circular concerning the claimant had been circulated to customers generally); and held that the occasion had not been privileged.93 On appeal, the High Court of Australia ruled that the occasion was in fact privileged, because one party had an interest in receiving the information and the other had a duty (at least moral) to pass it, given that it had been approached with an enquiry.94 No malice could be proved and so the defendants were to escape liability. This finding was, however, reversed by the Privy Council in London, which held that there was no such privilege because the agency had acted out of self-interest. As a result of which (applying the orthodoxy of English law at the time, namely, that outside of privilege the presumption of malice had become irrebuttable) they found the defendants to be strictly liable. The decision of the Privy Council, ‘opposed to the weight of previous authority’,95 was ill-received in New South Wales and promptly reversed the year after by an Act of the State legislature. Section 6 of the Defamation (Amendment) Act 1909 (NSW) dealt with the very specific situation which had caused the difficulty in Macintosh, ie that of defamatory matter published in pursuance of a contract made for consideration. It provided that the occasion of its publication could still be privileged (as per the original finding of the High Court of Australia), provided a number of conditions were satisfied. The important one for our purpose was listed in point (e):

the person making the publication has reasonable ground to believe the matter published to be true.96

91 Macintosh v Dun (1906) 3 CLR 1134 (HCA); Macintosh v Dun [1908] AC 390 (Privy Council (Australia)). 92 Macintosh v Dun [1908] AC 390, 391. 93 Foley v Hall (1891) 12 NSWR 175, esp 178 (‘the law will not recognise a joint-stock co- operative slander association, ltd’). 94 Macintosh v Dun 3 CLR (1906) 1134, 1149. 95 Jeremiah Smith, ‘Conditional Privilege for Mercantile Agencies—Macintosh v. Dun’ (1914) 14 Columbia LR 187, 192. 96 The entire section reads as follows: In any criminal proceedings or civil action against any person or corporation in respect of the publication of any matter, the publication may be deemed to be privileged, notwithstanding that such publication is made in pursuance of a contract whereby such person or corporation undertakes for valuable consideration to supply information to the person to whom such publication is made if — (a) the publication is in answer to an inquiry made in pursuance of such contract; (b) the matter published is relevant to the subject of the inquiry;

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This, on a different subject (information concerning third parties passed against consideration rather than matter in the public interest) and in a more concise form, is the exact same idea which ninety years later would be incorporated into the Reynolds privilege. The provision was not present in the original Bill, which simply contained the body of the final clause without the five conditions. The general principle, that information given in return for consideration can still be privileged, was defended by Sir Charles Wade, then Premier of New South Wales and sponsor of the Bill, largely by analogy from servant reference cases,97 and in an explicit attempt to reverse Macintosh.98 The provision was however opposed by William (WEV) Robson, Member of the Legislative Assembly for Ashfield, because in his view it was insufficiently protective of reputation and some safeguards had to be added. In the words of the recorder:

a great deal of damage was likely to be done to individuals in the commercial community, unwittingly, perhaps, unless there was some provision against carelessness on the part of people who supplied this information.99

(c) the matter and extent of the publication do not exceed what is reasonably sufficient for the occasion; (d) the person making the publication is not actuated by ill-will to the person defamed, or by any other improper motive; (e) the person making the publication has reasonable ground to believe the matter published to be true. 97 This is particularly significant given that it is in the context of litigation concerning masters’ references for their former servants that the modern doctrine of qualified privileged emerged: see Mitchell, Modern Law of Defamation, above n 16, 146ff; cf Macintosh v Dun 3 CLR (1906) 1134, 1149. 98 New South Wales Parliamentary Debates, 2nd Series, vol 35 (1909), 3298–3300. 99 Ibid, 3302. Given the seminal character of his intervention, it might be helpful to quote it in full: ‘Mr W. E. V. ROBSON (Ashfield) [9.48] said he had a great deal of sympathy with the argument of the hon. member for The Castlereagh. A great deal of damage was likely to be done to individuals in the commercial community, unwittingly, perhaps, unless there was some provision against carelessness on the part of the people who supplied this information. Those who entered this class of business did so to make a profit. It was an absolute necessity of the conditions of modern business that there should be a medium of this character, called a trade protection society, in order to give information as to the financial status of people with whom merchants were dealing and with whom, perhaps, they did not come into personal contact. There should be some reasonable protection against the making of reckless statements by these trade protection societies. Privileges should certainly be accorded to their communications, unless it could be shown that their statement were made mala fides. If you were going to give the privilege to their statements that was attached to communications between master and servant, how would it be possible for a person maligned to show mala fides? The difficulty would be almost superhuman of establishing mala fides. He suggested that the hon. gentleman should so amend his amendment as to stipulate that the statements should be true, or that the person making them had reasonable grounds for believing them to be true. That would throw the onus on the person making the statements of proving to the jury that he had made reasonable inquiries before circulating the information. That would allow these trade protection societies to continue their operations, and, at the same time, would protect individuals against recklessly untrue statements’.

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Wade’s response was positive: ‘any reasonable safeguard that could be devised he would be quite willing to accept ... He asked the Committee to let him further consider the question. He would endeavour to devise some protection between now and our meeting on Tuesday’.100 When the Committee reconvened, the new version of the section had been drafted and it was adopted. At this point we hit the last link. Robson does not appear to have had anything specific in mind when he put his point across, beyond the general point that the defence under discussion ought somehow to be tightened. That he was not basing himself on any specific legal doctrine or earlier authority can be seen easily from the text of his intervention, where he moved within one paragraph from an idea of carelessness to one of recklessness then of bad faith (ie malice), before returning to the notion of having ‘reasonable grounds for believing [the defamatory matter] to be true’ and finally to recklessness again. To use Roman terminology, he covered the whole ground from culpa to culpa lata to dolus and back: even though Robson was a lawyer, it is hard to read this as a technical legal statement. Unsurprisingly it is culpa — unintentional fault — that was inserted into the new draft. That Wade was already receptive to the idea of negligence as a standard of liability in defamation can in fact be seen from the statement which he had made while introducing the second reading of the Bill: ‘there is a general rule that a man, while exercising freedom of speech, must take care not to defame his neighbour’.101 This is the principle to which s 6 of the new Act was to give effect on a particular segment of the law. In truth, this was not the first occurrence of the idea of ‘responsible publication’ in the common-law world: in particular, the same suggestion had been made in a series of older American cases.102 However, because there is no evidence that the above Australian development borrowed either from these or from any other older source, the 1909 Act can properly be regarded as the first link in the ancestry of the English defence of responsible publication. While the subject-matter to which this responsibleness standard applies would go through important evolutions, the narrow scope of the 1909 Act being considerably expanded in 1974 and then pressed into service, in an unintended way, for the protection of media defendants having published a matter of public interest to the world at large, the requirement of a reasonable ground to believe the matter to be true remained remarkably stable. What would ultimately become the worldwide Lange-Reynolds-Bogoshi103-Grant movement (and its further

100 Ibid, 3303. 101 Ibid, 3103. This is a rather extraordinary phrase when one remembers that it was uttered in 1909. 102 Carpenter v Bailey (1873) 53 NH 590; Palmer v City of Concord (1868) 48 NH 211; The State v Burnham (1837) 9 NH 34. The 1837 case concerned a case of criminal libel and introduced an idea of ‘probable grounds’ in the law of privilege, which was explicitly borrowed from the tort of malicious prosecution. In 1869, ‘probable’ became ‘reasonable’; and in 1873 the Court asserted that ‘when the occasion is proper, one may be excused for stating what proves to be untrue, if he had probable cause to believe it true … [ie] with a belief, founded on reasonable grounds, of its truth’. In England, this approach was clearly rejected in Clark v Molyneux (1877) LR 3 QBD 237, eg 242: ‘The judge … wrongly directed the jury that there must be an honest belief founded on reasonable grounds; but the defendant is protected if he really did believe the statement to be true, however groundless his belief may have been’. 103 National Media Ltd and Others v Bogoshi (579/96) 1998 (4) SA 1196 (Supreme Court of Appeal). Bogoshi has not been mentioned before in this paper; suffice it to say that, building on Lange and Reynolds, but also some home-grown materials, the Supreme Court of Appeal of South Africa recognised that ‘it would be appropriate to hold media defendants liable unless they were not negligent in the circumstances of the case’ (at 1214C–F).

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developments such as the Uniform Defamation Acts 2005 and the Defamation Act 2013 (UK)), which transformed in depth the law of defamation and the operation of the mass media, can be traced all the way to, but no further than, the slightly haphazard intervention of William Robson in the Legislative Assembly of New South Wales in November 1909.

IV DEFAMATION, NEGLIGENCE AND THE LAW OF CIVIL WRONGS: THE SIGNIFICANCE OF RESPONSIBLE PUBLICATION

Leaving history behind, we turn in this final section to the significance of the above development both for the tort of defamation and, more widely, for tort theory. Naturally, the remarks which follow have no claim to exhaust what is a very broad topic, which could be approached from a number of different angles: their sole ambition is to highlight how the evolution that has been sketched out has a much wider reach than the relatively narrow sphere of application of the defence of responsible publication.

A Within the Law of Defamation

That Reynolds was in England (as Lange was in Australia, albeit more so) a highly significant evolution from the perspective of the practice of defamation law was mentioned at the outset and need not be returned to. Even though clear-cut conclusions are always difficult to draw where much of the evidence is of an anecdotal nature (and the impact of other factors, such as the cost of defending actions even when the prospect of success is heightened, should not be underestimated), it is impossible to deny that Reynolds was perceived by many potential (media) defendants as having considerably improved their position;104 and one documented effect of the new defence was to alter the very practice of journalism in an attempt to make publications ‘Reynolds-proof’.105 There is no reason to think that this will change materially in the wake of the enactment of a new, statutory version of the defence. This dimension has been thoroughly explored by others and can be left aside for now. This section focuses instead on the theoretical significance of responsible publication for the wider law of defamation (in an English context, but the underlying idea is relevant to other common-law jurisdictions as well). The gist of the argument lies in the fact that Reynolds and its subsequent developments represent, not the first, but by far the largest and most direct superimposition of an essentially negligence standard of liability onto an area of the law which had always been premised on a different model, that of malice.106 It is easy to fail to appreciate the importance of this dimension, or even to overlook it, so accustomed have we grown to negligence-based liability and modes of thinking throughout the law of tort. (Indeed we have almost completely lost sight of the fact that defamation was meant to be rooted in a different, and higher, form of fault.)107 But the fact of the matter is that, following Reynolds and

104 Weaver et alii, above n 4, ch 8 (cf ch 7 for the Australian context). 105 Ibid, 222. 106 The meaning of malice itself underwent changes, but this need not be looked at in the present context: see Mitchell, Modern Law of Defamation, above n 16, 101ff. 107 The allegation, even if purely formal, is no longer made in pleading: Gatley, above n 9, §26.10; Motel Holdings Ltd v The Bulletin (1963) 63 NSWR 208 (‘“falsely and maliciously” may now be regarded as ‘surplusage’). Admittedly malice became a rather shallow foundation a long time

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the Defamation Act 2013 (UK), we now have a third standard of liability operating within the law of defamation, which is fault-based — in the sense of negligence or culpa — and cuts across the dichotomy between dolus (malice) and casus (strict liability). A defence — of great practical importance — which is based on neither but, instead, is rooted in the different paradigm of reasonableness of conduct, now sits firmly at the centre of the modern English law of defamation. The foundations of the law have now decisively moved away from its original controlling principle, malicious intent. It is hard not to see this as one of the most, if not the most, significant development in that area, not simply since the Second World War as suggested at the beginning, but since the very inception of the action on the case for words.

B Within the Law of Civil Wrongs

The significance of this evolution goes, however, beyond the law of defamation, affecting the law of torts as a whole. To best understand this, it might be easier to make a brief detour through the Romanist tradition, whose conceptual apparatus makes the point that follows markedly easier to grasp. Before the era of modern codifications, civilian systems could be said to have a law of civil wrongs built on two principal actions, both of Roman origin. On the one hand was the ‘action on the Aquilian Law’, the actio legis Aquiliae (later known as the ‘action for loss caused’ or actio de damno dato): this redressed pecuniary loss — in the basic sense of the defendant being ‘out of pocket’ — caused by the violation of the claimant’s patrimonial rights. It was dependent on a culpa standard (that is to say, fault whether intentional or not).108 On the other hand, there was the actio iniuriarum, grounded in the Roman delict of iniuria (insult, contempt) and redressing non- pecuniary loss caused by the infringement of personality rights. This ‘action on insults’ was based on a form of intentional fault or malice known as animus iniuriandi, perhaps best described as ‘consciousness of wrongfulness’.109 This is still the way a legal system like South Africa is structured today. Against this background it is of great interest to observe how, historically, the wall separating the protection of the ‘having’ side of the law of wrongs from that of its ‘being’ side started to crack, and negligence (a more favourable standard of liability for the claimant) was allowed to break into the protection of personality rights. In a civilian context, this evolution triumphed in Art 1382 of the French Civil Code, which (at least as it came to be interpreted in the 19th century) subjects in principle the redress of all rights, whether patrimonial or not, to the same fault-culpa standard: any act whatever of a man which causes any damage whatever obliges him by whose fault (ie blameworthy conduct) it occurred to make reparation. While English law — and more generally the common-law tradition — never received the distinction between the actio legis Aquiliae and the actio iniuriarum, it is striking to observe both the extent to which this broad division was in fact replicated by the law, and how it is similarly breaking down. The now ultra-dominant tort of

ago, especially after the presumption had become irrebuttable in unprivileged situations; yet it could still be said, even if only rhetorically, that defamation was based on it, whether it be ‘expressly’ proven or conclusively presumed. 108 For a point of entry into the subject, see Zimmermann, above n 18, 953ff. 109 These matters are explored at much greater length in Eric Descheemaeker and Helen Scott, ‘Iniuria and the Common Law’ in idem, Iniuria and the Common Law (Hart Publishing, 2013), ch 1, esp 21ff.

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negligence should in principle be capable of redressing all injuries, provided they were caused negligently: this is in the nature of its being a transversal wrong defined by reference to a degree of fault rather than a particular right or type of loss. However, with the one exception of physical injuries (which have tended to be assimilated, in both traditions, to property rights), it has in reality shown the greatest reluctance when it comes to protecting personality rights. To the present day, you cannot sue in negligence alleging a negligent violation of your reputation;110 and the same seems to hold for your privacy. Even though the law would never speak in such terms, the tort of negligence behaves — imperfectly but in a very real sense — like the civilian actio legis Aquiliae, ie as if there existed another action to deal with non-pecuniary losses: a common-law-style actio iniuriarum. Yet in English law too, the separating wall is breaking down and negligence is gradually extending its scope of protection to other personality rights. (Elements of the same phenomenon are observable, if less markedly, in Australia.) Loss of liberty, a clearly non-pecuniary and non-physical harm, is now recognised as capable of founding an action in negligence.111 A case like Spring v Guardian shows the law transparently bypassing the protection of qualified privilege by allowing economic loss consequential upon a defamatory statement, which was thought to be the preserve of defamation, to be recovered in negligence.112 In this wider perspective, the defence of responsible publication can be seen as another step — perhaps the most important — in the process of the ‘territory’ of personality rights, historically controlled by ideas of intention and malice, being taken over by a negligence standard which arose and grew on the other side of the divide. While the law has strived, for the most part successfully, to protect defamation from the intrusion of the alien tort of negligence, what the new defence does is actually to replicate from the inside, across large swathes of the tort, a similar standard of unintentional fault. This, in turn, calls into question the effort to protect the specificity of the ‘right-based’ tort against the potential claims of the ‘fault-based’ one, the meaningfulness of which is proportional to the differences between the two sets of rules applicable.

C Assessment

There remains, from a normative perspective, the task of assessing this importation of a negligence standard of liability into the law of defamation. While such an assessment is, in the final analysis, bound to be a value judgement dependent on how one regards and values the right to reputation, this does not mean that arguments one way or the other are pointless: if nothing else, they help us circumscribe the issues on which the observer’s subjectivity will weigh in.

110 Descheemaeker, ‘Protecting Reputation’, above n 11, 621–2. There does not appear to be any Australian case on this particular point. 111 Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 MLR 59, 64–7 (and references cited). An old Victoria case suggests that the same would be true in Australia, despite the lack of recent judicial pronouncements: see Smith v Iffla (1881) 7 VLR 435; cf Peter G Heffey, ‘Negligent Infliction of Imprisonment: Actionable “per se” or “cum damno”?’ (1983) 14 MULR 53, esp 60–2. 112 Spring v Guardian [1994] 2 All ER 129; Descheemaeker, ‘Protecting Reputation’, above n 11, 634ff. Spring has been followed at least once in Australia (Wade v State of Victoria [1999] 1 VR 12), but the position of courts does not appear to be settled yet.

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Put simply, the reason why I regard the carving out, in an English context, of a defence of responsible publication as a most welcome development is because I do not see reputation (and generally personality rights) as being in nature different from property rights or physical integrity. They are all valuable interests, which deserve equal protection from the law in the sense that, whereas the wrongful character of an injury to these various interests might be more or less generously construed by the law, there is no reason why their redress should be subjected to different fault requirements. While this does not tell us, in itself, what the uniform standard of liability should be, it does mean that, if we consider unintentional fault to be the default minimum threshold for redress when a right has been infringed — which is observably true, not simply in modern English law but historically across the divide between the civilian tradition and the common law — then the same standard should apply, at least prima facie, to reputation. At the very least, the onus should be on those arguing for a stricter or less stringent form of liability in defamation to justify any departure from the usual rule.

What this position entails is that the common law has historically proved to be almost constantly either too protective of reputation or not protective enough. Basing redress on proof of malice (which might have made sense in a Roman-law context where defamation was treated as a form of insult, or in canon law where it was understood as a sin) is too harsh on the claimant; on the other hand, conclusively presuming malice (which in effect means imposing strict liability) is not protective enough of the defendant. In other words, the law has meandered between taking reputation too seriously, as the crown on our head, more precious than our very life,113 and dismissing it too readily on account of there being no ‘real’ (ie tangible) loss caused: ‘sticks and stones may break my bones, but words will never hurt me’. Reynolds and its cognate developments are, to my mind, indicative of a much more satisfactory middle ground. Words do hurt (and not simply reputation); yet the idea that the good esteem of our peers is our most precious asset strikes me as fanciful. Reputation genuinely matters, but so do a myriad other interests; and there does not seem to be any good reason why its protection should be rooted in a different standard of liability than the default yardstick. Again, while this cannot be proved to be right, what can be seen more easily is that, from the mechanism of offer to make amends to the liability of distributors, and from the requirement of reasonable foreseeability of repetition to Spring v Guardian to, of course, Reynolds and the Defamation Act 2013 (UK), many evolutions in the recent history of English defamation show the law behaving as if it agreed with the above assumption.114 It is tempting to take this as evidence that it really does.

V CONCLUSION

That the law develops through odd twists of fate is, of course, old news. This paper has provided a fresh illustration of that principle in the context of a matter which has caused a lot of ink to flow over the last fifteen years in the common-law world: the Lange-Reynolds-Bogoshi-Grant defence of responsible publication. In 1999, the House of Lords held that a defamation defendant could escape liability outside the old

113 Zimmermann, above n 18, 1062ff, citing Shakespeare’s famous line in Richard II: ‘Mine honour is my life; … Take honour from me, and my life is done’. 114 Descheemaeker, ‘Protecting Reputation’, above n 11, 627ff.

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categories of truth and qualified privilege, provided the matter was in the public interest and had been published responsibly, by which was meant that there should have been reasonable grounds to believe it to be true. That stance was confirmed by the Defamation Act 2013 (UK), even though the use of language broad enough to encompass the altogether separate defence of reportage obfuscated the issue. While the above idea had been suggested as early as 1965, in a British context, by the Shawcross Report,115 this it is not where the highest Court of the United Kingdom borrowed the ‘depth’ of its new defence of responsible publication; rather it took it from a judgment of the High Court of Australia (Lange), which itself had given the latest twist to an idea traceable all the way to 1909 and the rather unprincipled intervention of a member of the Parliament of New South Wales fearing that insufficient protection was being given to the reputation of tradesmen in Sydney. The fact that developments might have occurred in a slightly haphazard manner does not mean, however, that they do not answer to any underlying logic, which can be looked at in its own right. Knowing the context in which new provisions were born helps us to understand better their significance and the way they relate to the pre- existing body of rules and learning into which they were inserted; but to a large extent their value can be assessed in the abstract. In this case, for the reasons explained in the final part, the development which started in New South Wales and culminated, from an English perspective, in the judicial recognition almost a century later of a defence of responsible publication is warmly to be welcomed. It represents a considerable step towards the establishment of a broadly negligence standard of liability in the law of defamation, which itself reflects a more satisfactory appreciation of reputation as being no different in nature from the other interests the law of civil wrongs protects, in principle neither more nor less valuable than them. In this, the new defence goes a considerable way towards actualising the futurist vision of Premier Wade in 1909 that ‘a man ... must take care not to [falsely] defame his neighbour’.116

115 Joint Working Party of Justice and the British Committee of the International Press Institute, The Law and The Press (Stevens & Sons, 1965), 43: ‘There should be a statutory defence of qualified privilege for newspapers in respect of the publication of matters of public interest where the publication is made in good faith without malice and is based upon evidence which might reasonably be believed to be true’. 116 Above, n 101. A wholesale proposal to base the law of defamation on negligence was in fact put forward in an Australian context by barrister Stuart Littlemore: see New South Wales Law Reform Commission, Defamation, above n 29, 167ff. The examination of his proposal lies beyond the scope of this paper.