UK: Public Interest Defence Reviewed

Last Updated: 5 June 2008
Article by Jonathan Coad

Since it is characterised as a public interest defence, the most important impact of the Reynolds defence is in the area of politics. If a politician can be the subject of untrue and defamatory factual allegations, and have no means of challenging them, then the decisions which are made as to whether to vote for him or his party may be based on false information.

The Factual Background

This is the issue that arose in this case, where issues of race also arose. The claimant (Shahid Malik) is the MP for Dewsbury and Mirfield, and a Minister at the Department of Overseas Development. The first defendant was the publisher of the Dewsbury Press, the second defendant being the editor of the newspaper and the third defendant a political rival (Jonathan Scott - a Conservative councillor standing for re-election in the Dewsbury area). Mr Scott was the source of the allegations, which were prompted by his unsuccessful campaign to be re-elected.

A thwarted and disgruntled political rival might not be thought the most reliable source of information on which to make serious allegations against an MP and Minister. When the malcontent is also of a different race and community, then it would be reasonable to suspect that his criticisms of the victor in the election process might not be entirely disinterested. The denial by Mr Scott that there was any element of "sour grapes in any way at all" might also be one which engenders some doubt given the gravely defamatory meanings of the article ascribed to it by the claimant. Mr Malik claimed that the article meant that he had organised and directed gangs of Asian thugs to disrupt the voting; threatened and intimidated voters thereby committing serious criminal offences; exhorted and put improper pressure on voters to vote according to ethnic or religious affiliations thereby knowingly fuelling unrest and causing tension and racial divisions within the community; and that he was a racist and a dangerous extremist who was unfit to hold public office.

The Public Interest Defence

Clearly any interested person, especially someone seeking elected office, must be permitted to make such allegations either to the Electoral Commission, the police, or some official body. Equally, if such complaints are made, it must (no less obviously) be not only the right but the duty of the press to report the outcome. The issue before the court was whether the very serious allegations made to the general public both by Mr Scott and the local newspaper should be immune from challenge by their seriously defamed subject.

As Mr Justice Eady observed, the privilege defence sought here was of the Reynolds variety, but the facts of this case differed from earlier authorities derived from that case. Neither of the publications (a letter by Mr Scott and an article in similar terms) constituted investigative journalism. The issue also arose whether the letter of Mr Scott, who was a contributor rather than a journalist, could enjoy either Reynolds or a related species of privilege.

Mr Justice Eady was in principle not unsympathetic to the claim of the newspaper and editor for privilege, even though it did not fall directly within the terms of Reynolds. Mr Scott's position was different, since he was himself making factual allegations rather than reporting them:

"There is no authority to support the proposition that he can do so to the world at large without having to prove that they were substantially true. No doubt he could have raised his concerns on a more limited basis which would, almost certainly, have attracted the protection of privilege for example to the police, to the returning officer or to the appropriate body within the Labour Party. There is no comparable defence for simply making serious allegations of this kind to the general public."

As to the newspaper and its editor, they might have attracted Reynolds privilege, "provided certain steps had first been taken; for example obtaining a response from Mr Malik in advance of publication or carrying out corroborative checks. Moreover, if both sides of the controversy were fairly and disinterestedly reported then there might have been a reportage defence."

However, the newspaper's attempts to contact Mr Malik to enable him to comment before publication were either inadequate or non-existent, and no effort was made to give his side of the story at all. This was fatal to the Reynolds privilege defence advanced by the newspaper and editor.

Conclusion

One of the oddities of the Reynolds defence is that a publication can seemingly rely on the defence if it contacts the victim of the defamatory allegations and publishes the gist' of his or her response. The public will of course assume that such serious allegations would be denied as a matter of course whether they are true or not. The public is therefore really none the wiser if a brief denial at the end of the article (which it seems is all that is required) is published, but because the box has been ticked the defence will stand. So in this case it seems that if the newspaper had published a token denial by Mr Malik, the defence would have succeeded, even though it is difficult to see what real difference this would have made (except in the collective mind of the Appeal Committee of the House of Lords).

The other peculiar feature of this defence is that had it been relied on exclusively by the defendants in this action, the public would even at the conclusion of the trial process still be none the wiser as to whether the serious allegations made against Mr Malik were or were not true. The jury could not agree a verdict at the first trial of the action and it has just been reported that the new trial will now proceed with the benefit of a full justification defence. This raises further doubts as to the public interest in a defence that prevents the public from finding out whether serious allegations of racism and electoral misconduct by a political rival of a different faith and race, against a black Muslim MP, senior member of a political party and Government Minister, are or are not true.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.