Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The Judicial Committee of the House of Lords dismissed an appeal in a defamation case. Former Irish Prime Minister, Albert Reynolds initiated defamation proceedings against the Sunday Times, which published an article that claimed that Reynolds had misled cabinet colleagues and suppressed information. The House of Lords dismissed the argument that a generic defense should be available for the communication of political information, but affirmed that the traditional common law defense of qualified privilege is available to the media and established what came to be known as the “Reynolds test”.
Mr. Reynolds was the Taoiseach (prime minister) of Ireland until a political crisis led to his resignation. The following Sunday, the Sunday Times newspaper published an article detailing the events leading to Mr. Reynolds’ resignation. The article alleged that Mr. Reynolds had suppressed information and misled his cabinet colleagues, but did not report his response to these allegations as stated to the Irish parliament. Mr. Reynolds initiated defamation proceedings. At trial the jury held that the journalist, Mr. Ruddock, could not prove the allegations but that he had not acted maliciously in writing the article. The jury awarded zero damages, substituted by the judge for an award of one penny. The judge also ruled that the newspaper could not rely on the defense of qualified privilege.
Both parties appealed. Mr. Reynolds contended that the judge had misdirected the jury in certain respects; and the defendants cross-appealed against the judge’s decision on the point of qualified privilege. Mr. Reynolds’ appeal was admitted and the jury verdict was set aside. The Court of Appeal held against the defendants stating that they would not be able to rely on the defense of qualified privilege. The defendants were given leave to appeal against the ruling of the Court of Appeal given that the issue was of public importance.
The House of Lords dismissed the appeal but ruled that the defense of qualified privilege could in principle extend to the media. Lord Nicholls delivered the leading opinion. Lord Cooke and Lord Hobhouse agreed with Lord Nicholls; Lord Steyn and Lord Hope would have allowed the appeal.
The first issue was whether a new category of qualified privilege should be created when qualified privilege would derive from the subject matter alone, namely political information. Counsel for Times Newspapers submitted that the common law could be developed in this direction, submitting that the privilege could be defeated if the plaintiff proved the newspaper failed to exercise reasonable care. Lord Nicholls disagreed that this was the appropriate solution, holding that, “[t]hat would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern.” Lord Nicholls also disagreed that the burden of proof should be on the plaintiff to show that the newspaper exercised reasonable care.
Instead Lord Nicholls held that the established common law approach to to qualified privilege remained essentially sound, and that its elasticity would enable the court to give appropriate weight to the importance of freedom of expression by the media on all matters of public concern. In applying the defence, he stated that the following matters should be taken into account:
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case.” [p. 11,12]
Lord Nicholls emphasized that, “it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”
The second issue before the Court was whether the article would fall under the ambit of qualified privilege as newly elaborated. Lord Nicholls held that it did not, emphasizing in particular that Mr. Reynolds’ response had not been included in the story: “it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any explanation already given. An article which fails to do so faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded expression by confirming that the defence of qualified privilege in defamation law can be relied on by the media, and laid down what became known as the ‘Reynolds defense’, available to journalists in defamation cases so long as the information is of public interest and has not been published with malicious intent. While it does not add a new category of qualified privilege, it provides a ‘checklist’ of matters to be taken into account in assessing whether the requirements of qualified privilege have been met.
This decision and the ‘Reynolds test’ it propounds has been relied on in a number of high profile cases, including the Court of Appeal in Loutchansky v. Times Newspapers the House of Lords in Jameel v. Wall Street Journal. However, the test came to be criticized because courts were using the list of factors as a ‘checklist’ instead of treating it with the elasticity that Lord Nicholls had intended. Many ‘Reynolds defences’ failed for that reason. Section 4 of the Defamation Act 2013 abolished the test and instead created the defence of “publication on matter of public interest”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Until the establishment of the Supreme Court, the House of Lords was the highest court in the United Kingdom and its judgments set binding precedent.
House of Lords judgments are influential across the Commonwealth. This judgment has been cited in dozens of cases including in Australia, Hong Kong, South Africa, Tonga, India, New Zealand, Fiji and Canada as well as by the European Court of Human Rights.
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