"The Reynolds privilege is concerned to provide a
proper degree of protection for responsible journalism when
reporting matters of public concern. Responsible journalism is the
point at which a fair balance is held between freedom of expression
on matters of public concern and the reputations of individuals.
Maintenance of this standard is in the public interest and in the
interests of those whose reputations are involved. It can be
regarded as the price journalists pay in return for the privilege.
If they are to have benefit of the privilege journalists must
exercise due professional skill and care."
(per Lord Nicholls in Bonnick v Morris  1 AC 300 Privy Council appeal from Jamaica)
This balance between freedom of expression and reputation of individuals was recently considered by the UK Supreme Court in Serafin v Malkiewicz and others  UKSC 23 ("Serafin").
Serafin was an appeal in a defamation action where Lord Wilson said was 'sensitive and important' as it involves findings of the Court of Appeal that the trial judge was unfair towards the claimant. The Supreme Court also considered whether the Reynolds public interest defence had been codified in Section 4 of the Defamation Act 2013.
- The proper conduct of a trial judge, especially to a litigant in-person.
- In concluding that a judgment was obtained from an unfair trial, the Court of Appeal should have sent the matter for re-trial.
- When considering the public interest defence in Section 4 of the UK Defamation Act 2013 ("Defamation Act 2013") the court should not use the Reynolds' factors as a checklist.
- In the UK, the passing of the Defamation Act 2013 was intended to strike a balance between the claimant and defendant. UK defamation decisions based on s.4 of the Defamation Act 2013 should be applied by Malaysian courts with caution. The leading UK decisions that remain applicable in Malaysia are Reynolds v Times Newspapers Ltd  2 AC 127, Jameel (Mohammed) v Wall Street Journal Sprl  UKHL 44 and Flood v Times Newspapers Ltd  UKSC 11.
This case concerns an article published by Nowy Czas, a newspaper for the Polish community in the UK on Mr. Serafin ("Claimant"), a Polish builder who had been living in the UK for many years. The Claimant had a food business, called Polfood, in 2008. The company then became insolvent and the Claimant was declared a bankrupt in 2011. In the following year, the Claimant was discharged subject to a Bankruptcy Restrictions Undertaking.
The action was brought by the Claimant against the co-publishers of the newspaper, as well as the editor, Mr Malkiewicz and others ("Defendants"). The Claimant alleged that the article, entitled 'Bankruptcy need not be painful' in Polish language, had 13 defamatory imputations or meanings. The Defendants stated that the article, inter alia was published in the public interest whereby the Claimant was 'a bankrupt and a serially untrustworthy man who, in order to satisfy his ambition and financially benefit himself and his family in Poland, took improper advantage of a number of people, including women'.
At the trial, the Claimant appeared for himself. The High Court dismissed the claim. The High Court judge found that 7 meanings were substantially true. The High Court Judge also considered the defence under section 4 of the Defamation Act 2013 for all the 13 meanings and found that the Defendants could rely on the defence of 'publication on matter of public interest'. The High Court judge added that, even if the defence had not been made out, he would not have awarded damages to the Claimant, as his reputation had been 'shot to pieces' by other statements in the article which had been shown to be substantially true.
On appeal, the Claimant's appeal was allowed. The Court of Appeal rejected the public interest defence. The Court of Appeal also made extensive critical comments about the High Court judge's interventions during the trial as being apparently biased and thus rendering the trial unfair. However, the Court of Appeal did not order a retrial but instead, remitted the task of quantifying the Claimant's damages to another judge.
The defendants appealed to the Supreme Court.
The issues that arose were:
- Whether the trial judge was unfair and whether bias is an element
- What is the correct outcome upon determination of an unfair trial
- Whether the public interest defence under Section 4 of the Defamation Act 2013 is the same as the Reynolds defence
On the issue of Unfair Trial and Whether There Should Be a Retrial
The Supreme Court dismissed the appeal but ordered a retrial.
The Supreme Court held:
- Upon reviewing the full transcripts of the oral evidence given
(which was annexed to the Judgment with comments on instances of
the trial judge acting unfairly), the trial judge had
"harassed and intimidated" the litigant-in-person,
rendering the trial unfair:
"...when one considers the barrage of hostility towards the claimant's case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal's conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair."
- There was an appearance of bias against the litigant even from a plain observer's point of view. Under the adversarial system, the trial judge should "remain aloof from the fray and neutral" even in civil litigation.
- The proper order to be given by an appeal court when a judgment is a result of an unfair trial is for a retrial. This is because the judgment is "written in water" and no legal conclusions can be based on an unfair trial.
On the issue of Public Interest Defence
The Supreme Court held as follows:
- Section 4 of the Defamation Act 2013 provides publishers with a defence against such claims where the statement complained of was or formed part of, a statement on a matter of public interest; and the person accused of defamation reasonably believed that publishing the statement complained of was in the public interest. It is also known as the 'public interest defence'.
- S.4 defence is based on the common law position in the House of Lords case of Reynolds v Times Newspapers Limited  2 AC 127 ("Reynolds"). The House of Lords held that there could be a free-standing defence to a defamation claim that the material complained of was published on a matter of public interest. In the Reynolds case, Lord Nicholls identified ten 'non-exhaustive' factors to be taken into account when determining whether the defence is applicable, such as the seriousness of the allegations, the tone of the words complained of, and whether the allegations had been put to the victim.
- The Court of Appeal was wrong for considering the element of responsible journalism as set out in the Reynolds case and for using them as a 'checklist' in determining whether an article is of 'public interest'. Further, the question is supposed to be whether it is 'on a matter of public interest'. Section 4 of the Defamation Act 2013 was intended to codify the common law rules and although the underlying rationale of section 4 remains the same with Reynolds' defence, the Court of Appeal was wrong to "consider that the elements of the statutory defence can be equiparated with those of the Reynolds defence".
- Failure by the Defendant in obtaining the Claimant's comments prior to publication was not enough to preclude the defence under section 4. Seeking comments before publication is an issue of consideration based on the circumstance of the case but not a requirement.
- The courts must adopt strictly the language of the statute and take in all the factors in determining whether the public interest defence applies and not be gulled, either by the pre-existing common law position, or by what the courts consider makes good or practical sense.
The UK Supreme Court has clearly stated that the Court of Appeal was wrong to "consider that the elements of the statutory defence can be equiparated with those of the Reynolds defence". Therefore, UK defamation decisions based on s.4 of the UK Defamation Act 2013 should be applied by Malaysian courts with caution. The leading UK decisions that remain applicable in Malaysia are Reynolds v Times Newspapers Ltd  2 AC 127, Jameel (Mohammed) v Wall Street Journal Sprl  UKHL 44, and Flood v Times Newspapers Ltd  UKSC 11.
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.