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The Origins and Significance of the Defence of Responsible Publication

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The Origins and Significance of the Defence of Responsible Publication ‘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. Vol 34(2) The Defence of Responsible Publication 241 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.
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