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.
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