Defamation law and free speech: Reynolds v. Times Newspapers and the English media.

• Author: Weaver, Russell L.

ABSTRACT

The common law of defamation cut the balance between speech and reputation decisively in favor of reputation and allowed for the imposition of significant damages against media outlets that defamed. For the last four decades, U.S. media outlets have been insulated against the common law rules by the United States Supreme Court's landmark decision in New York Times Co. v. Sullivan. Following Sullivan, Commonwealth countries clung steadfastly to common law rules and are only now beginning to modify the common law rules to provide speech and media protections. Rather than following Sullivan by adopting constitutional protections, however, Commonwealth courts have opted to provide that protection by expanding common-law qualified privilege protections.

The Authors examine the Reynolds' standard with particular emphasis on how that decision has affected media practices and reporting. They do so through empirical evidence rather than doctrinal analysis. The Authors engaged in extensive interviews with the British media during 2003 and 2004, four to five years after Reynolds was decided. Since some of the authors also conducted extensive interviews with the British media in the early 1990s, years before Reynolds was decided, the authors were able to compare and contrast their pre-Reynolds interviews with their post-Reynolds interviews, and thereby gain a better understanding of Reynolds' impact.

The Authors conclude that, although Reynolds has had some impact on British defamation law as well as on the practices of the British media, the impact has not been as dramatic as the Sullivan decision's impact on U.S. press and media practices.

TABLE OF CONTENTS I. INTRODUCTION II. REYNOLDS' EFFECT ON ENGLISH LAW A. Pre-Reynolds English Law 1. Libel, Slander, and Procedure 2. The Claimant's Case 3. The Defendant's Case B. Justification C. Fair Comment D. Privileges E. The Reynolds' Decision III. PRE-REYNOLDS INTERVIEWS A. Threats of Suit B. The Rate of Defamation Litigation C. Responses to Post-Publication Suits and Threats of Suits D. Insurance E. The Motivations of Defamation Plaintiffs F. Participation of Lawyers in the Editorial Process G. The Role of Lawyers in the Editorial Process: Privileges and "Legally Admissible Evidence". H. The Effect of the "Legally Admissible Evidence" Standard on Reporting I. The Media and Particularly Litigious Individuals J. A Resourceful Media: Exploiting Privileges K. Ability to Report the Public Interest L. A Hypothetical English "Watergate" M. Britain's Cost Rules IV. REYNOLDS' EFFECT: POST-DECISION INTERVIEW RESULTS A. Threats of Suit B. The Rate of Defamation Litigation C. Responses to Threats of Suit: Pre-Publication D. Responses to Post-Publication Suits and Threats of Suits E. Insurance F. The Motivations of Defamation Plaintiffs G. Participation of Lawyers in the Editorial Process H. Reynolds and the "Legally Admissible Evidence" Standard I. Ability to Report the Public Interest J. Concerns About Reynolds K. Reynolds and Particularly Litigious Individuals L. Suits by Governmental Officials M. Data Protection Laws N. A Hypothetical English "Watergate". O. Britain's Cost Rules V. CONCLUSION I. INTRODUCTION

The law of defamation presents an inevitable conflict between reputation--or more precisely, the need to compensate those whose reputations have been injured by defamatory statements--and the societal need for free expression. (1) Until the second half of the twentieth century, most countries resolved this conflict in favor of reputation. Some countries valued individual reputation as a quasi-personal property right that deserved compensation if damaged, while others recognized reputation as an aspect of the burgeoning concept of privacy (or more generally, human dignity) and therefore needing protection by enjoining speech altogether. (2)

In the landmark 1964 decision New York Times Co. v. Sullivan, (3) the United States Supreme Court established constitutional protections for expression and limited the ability of defamation plaintiffs to recover. Despite the N.Y. Times decision, most Commonwealth countries steadfastly clung to the notion that defamation is a necessary protection lest good people fall to foul rumor. (4) But, even in Commonwealth countries, the balance is beginning to shift in favor of free expression. The trend began in the Pacific Rim. In Lange v. Australian Broadcasting Corporation, (5) Australia's High Court extended the common law doctrine of "qualified privilege" to protect publications related to the conduct of governmental affairs. (6) In Lange v. Atkinson, (7) New Zealand's Court of Appeal held that qualified privilege included speech about politicians and candidates. (8) Finally, in 1999, Britain's House of Lords decided Reynolds v. Times Newspapers (9) and expanded common law qualified privilege to provide special protection to the English media for reporting on matters of "public interest." The net effect is that four distinct approaches have been taken. One country (the United States) has taken a constitutional approach while three others (England, Australia, and New Zealand) have taken varying common law qualified privilege approaches, albeit using different standards. (10)

Given the plethora of standards, legitimate questions arise about whether one standard strikes a preferable balance between speech and reputation. The essence of the N.Y. Times decision was a rule that prevented public officials from recovering for defamation unless they could show that the defendant had acted with "actual malice." (11) The actual malice standard, which was later extended to "public figure" plaintiffs, (12) required public officials to show that those who defamed them knew that what they printed was untrue, or that the defamer acted with reckless disregard for the truth.

Commonwealth countries have not tended to follow the N.Y. Times decision. In part, this may be due to the fact that some Commonwealth jurisdictions have never been entirely comfortable with the N.Y. Times decision and its focus on the plaintiffs status. (13) This difference in approach may also have been dictated by differences in constitutional structure. Britain, for example, has no written constitution. Although Britain is a signatory to the European Convention and has adopted a statutory bill of rights (in the form of the Human Rights Act of 1998), (14) the relevant statement on free speech (in Schedule 1, Article 10) (15) is in qualified form and is therefore quite distinct from the United States Constitution's First Amendment. Australia has a written constitution, inspired by the United States Constitution, but the document does not contain a bill of rights. (16) Although the Australian High Court has interpreted the Constitution as containing an implied right of free speech for government and political matters, (17) and has even flirted with providing constitutional protections for defamation, (18) the High Court ultimately chose the common law qualified privilege route.

The question is whether the new common law qualified privilege approaches provide adequate "breathing space" for speech. In the N.Y. Times decision, the United States Supreme Court focused on the presumed "chilling effect" of defamation laws on speech and the need to protect the media against it. (19) Before the recent decisions, the evidence strongly suggested that both English and Australian defamation law failed to provide much "breathing space" for speech and that English and Australian media outlets were deeply concerned about the potential for defamation liability. (20) Post-decision research suggests that the Australian Lange decision has had only a marginal effect on Australian media law and has not revolutionized Australian defamation law in the same way that the N.Y. Times decision revolutionized U.S. law. (21) But there is reason to think that Britain's Reynolds decision may be having more effect. Reynolds provided somewhat broader protections than the Australian Lange decision, and it focused on matters of "public interest" rather than on simply matters relating to the conduct of government. (22)

This Article principally examines Reynolds' effect on English media practices through empirical evidence rather than doctrinal analysis. The results are based on interviews with members of the English media conducted during 2003 and 2004, four to five years after Reynolds was decided. Because some of the Authors also conducted extensive interviews with members of the English media in the early 1990s, years before Reynolds was decided, they were able to compare and contrast their pre-Reynolds interviews with their post-Reynolds interviews, thereby gaining a better understanding of Reynolds' effect.

As will be developed more fully below, Reynolds has had some effect on English defamation law as well as on the practices of the English media, and it has certainly had more than the marginal effect of the Australian Lange decision. The extent of that effect, however, is difficult to assess because the English media are struggling to ascertain what Reynolds means. Some English media outlets have reacted to Reynolds very cautiously. Others have assumed that the decision provides significant media protection and have responded and acted accordingly. In addition, it is difficult to divine its precise effect distinct from other substantive and procedural changes that occurred around the same time.

II. REYNOLDS' EFFECT ON ENGLISH LAW

The Reynolds decision represented a significant change in English defamation law. In order to understand the decision's significance, it is important to canvass pre-Reynolds English defamation law.

1. Pre-Reynolds English Law

   It is not easy to explain or understand the English common law of defamation. As a leading U.K. commentator stated, "[t]he law of defamation is notoriously complex." (23) Its complexity comes from numerous detailed and technical rules, which stem from the...