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Case Analysis: Article 10, the Reynolds Test and the Rule in the Duke of Brunswick's Case: the Decision in Times Newspaper

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Case Analysis: Article 10, the Reynolds Test and the Rule in the Duke of Brunswick's Case: the Decision in Times Newspaper Case Analysis: Article 10, the Reynolds Test and the Rule in the Duke of Brunswick’s Case: the decision in Times Newspaper Ltd v the United Kingdom Rory Dunlop This case analysis looks at the recent decision of the European Court of Human Rights in Times Newspaper Ltd v the United Kingdom1. In this case, the Times sought to challenge two important aspects of the English law of defamation: the Reynolds test for qualified privilege and the rule in the Duke of Brunswick’s case. The Court decided that the criticisms of the Reynolds test were manifestly ill-founded but left open the question of whether the rule in the Duke of Brunswick’s case was compatible with Article 10. This analysis examines the Court’s reasoning in relation to the Reynolds test and argues that the Court should find the rule in the Duke of Brunswick’s case to be incompatible with Article 10. 1. Background Before looking at the case which is the subject of this analysis, it is necessary to look first at the two elements of the English law of defamation that the applicant intended to challenge. (a) The Reynolds Test The so-called Reynolds test emanates from the judgment of the House of Lords in Reynolds v Times Newspapers2. Albert Reynolds was a former Irish Prime Minister accused in the British press of deliberately misleading the Irish Parliament. Reynolds sued for defamation and the defendants pleaded, inter alia, qualified privilege. At the trial the jury returned a verdict in the plaintiff's favour and he was awarded the sum of 1p by way of damages. The Court of Appeal set aside the jury's verdict and ordered a retrial. The court also ruled that the publication was not covered by qualified privilege. The defendants appealed, arguing that there should be a ‘generic’ qualified privilege encompassing the publication by a newspaper of political information. The House of Lords rejected this argument. They considered that the proposed new category of qualified privilege would fail to provide adequate protection for reputation. In addition they held that it would be unsound in principle to distinguish political discussion from other matters of serious public concern.3 However, they did say that the defence of qualified privilege would be available in respect of political information when the defendant satisfied the old common law test, i.e.: “where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a 4 corresponding interest or duty to receive it.” 1 Application numbers 23676/03 & 3002/03, decision of 11 October 2005. 2 [2001] 2 AC 127 3 ibid. at 204 G-H 4 ibid. at 194 H, citing Adam v. Ward [1917] A.C. 309, 334 1 Lord Nicholls, giving the leading judgment, went on to provide a non-exhaustive list of the factors to take into account when deciding whether the defence should be available5: “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.” The application of these factors came to be known as the Reynolds test. This test was criticized by some commentators and judges. Clayton and Tomlinson criticised it in ‘The Law of Human Rights’6 on two grounds. First, they said that it did not provide full recognition of the species of ‘qualified privilege’, developed by the Convention jurisprudence, described as a ‘safeguard to journalists’ when ‘matters of legitimate public concern’ are being discussed by the press. They cited Bergens Tidende v Norway 7 as an example of this species of qualified privilege. Secondly, they argued that it left the law of defamation in a state of uncertainty in relation to media discussion of matters of public interest. They said the following8: “In the absence of a developed body of case law, a responsible media organisation publishing material relating to matters of ‘public interest’ will be unable to determine whether a defence is available. It seems that the full background to the publication will have to be investigated in each case in order to satisfy the court that there is a ‘right to know’. It is arguable that this uncertainty, of itself, constitutes an unacceptable restriction on freedom of expression.” The New Zealand Court of Appeal also argued, in the case of Lange v Atkinson9, that the Reynolds test would create excessive uncertainty. This case concerned an article by a political scientist accusing the former Prime Minister, David Lange, of hypocrisy. The defendant pleaded qualified privilege and was successful before the High Court. The Court of Appeal dismissed the appeal and, in the process, appeared to develop a ‘generic’ qualified privilege defence, for statements made about the actions and qualities of current, former and prospective members of 5 ibid. at 205 A-C 6 2000 edition at § 15.249. 7 Application number no. 26132/95, Judgment of 2 May 2000. Clayton & Tomlinson relied on paragraphs 53 and 60 in particular 8 2000 edition at § 15.249 9 [2000] 3 NZLR 385 2 Parliament, similar to the one which was later rejected by the House of Lords in Reynolds10. The Privy Council, on appeal, sent the case back to the New Zealand Court of Appeal to take into account the decision of the House of Lords in Reynolds11. The New Zealand Court of Appeal upheld their original judgment, with modifications, and declined to follow the House of Lords.12 They considered that a distinction needed to be maintained between the occasion of privilege and its abuse. The quoted a report carried out on libel and its chilling effect on the media.13 The report concluded that ‘uncertainty in both the principles of defamation law and their practical application induce great caution on the part of the media’. The Court added the following:14 “The blurring, perhaps even the removal, of the line between the occasion and its abuse in Lord Nicholls of Birkenhead's non-exhaustive list must add significantly to that uncertainty. In the absence of compelling justification that consequence appears undesirable.” Later, in their conclusions, they said:15 “[T]he Reynolds decision appears to alter the structure of the law of qualified privilege in a way which adds to the uncertainty and chilling effect almost inevitably present in this area of law. We are not persuaded that in the New Zealand situation matters such as the steps taken to verify the information, the seeking of comment from the person defamed, and the status or source of the information, should fall within the ambit of the inquiry into whether the occasion is privileged. Traditionally such matters are not of concern to that question in the kind of setting presently under discussion. In particular, source and status may be relevant, but only in the area of reports of meetings and suchlike. For the reasons expressed in our earlier judgment, we do not consider it necessary, nor would it be in accord with principle, to import into this inquiry, for the limited purposes of the specific subject-matter now under discussion but not otherwise, a specific requirement of reasonableness.” (b) The Rule in the Duke of Brunswick’s case The Duke of Brunswick v Harmer16 is the case normally cited for the established common law rule that each publication of a defamation gives rise to a separate cause of action. The case itself concerned an article published in a magazine on 19 September 1830, when the limitation period for libel was six years. The article defamed the Duke of Brunswick. Seventeen years after its original publication, a servant of the Duke obtained a back number of the magazine from the office of the magazine’s publishers and from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The Court held that the delivery of a copy of the newspaper to the plaintiff’s agent constituted a separate publication in respect of which suit could be brought. 10 Lange v Atkinson [1998] 3 NZLR 424 at 468 11 Lange v Atkinson [2000] 1 NZLR 257, unreported in England 12 Lange v Atkinson [2000] 3 NZLR 385. See ‘Defamation Law in New Zealand ‘Refined’ and ‘Amplified’’ by W.R.Atkin, Common Law World Review 30.2 (237) June 2001 in which Mr Atkin argues convincingly that the later decision of the New Zealand Court of Appeal in fact bears more similarities to the judgment in Reynolds than to their original judgment.
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