Earlier this week, the latest iteration of the draft defamation bill was debated at the report stage of the House of Lords. One of the most controversial aspects of the bill is clause 4 – the Public Interest Defence. The original purpose of the clause was to codify, and therefore clarify and strengthen, the existing common law defence of Reynolds qualified privilege. A particular sticking point through the parliamentary debates is how to address the so-called ‘doctrine of reportage’.
Matters came to head in the House of Lords when Lord Phillips branded reportage as “a most barbaric concoction” and Lord Lester called for the clause to be removed completely. (Hansard, Column 196, February 5, 2013.). Although hanging by a thread, the reportage clause survived through to the third reading in the Lords in the following form:
If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
In defending their decision to keep a specific reportage provision in the draft bill, the Government explained that the clause reflects the law as it currently stands. We argue however that the clause neither achieves clarity, nor does it reflect the current state of the law as developed by the courts.
In the seminal cases of Al-Fagih v. HH Saudi Research Marketing (UK) and Roberts v Gable, the Court of Appeal recognised reportage as a particular application of Reynolds privilege which provides a defence to the republication of defamatory allegations that are originally made by the participants to a dispute or controversy of public interest. As held by Lord Phillips in Flood v Times Newspaper Ltd, the distinguishing feature of reportage is that
“it is not the content of a reported allegation that is of the public interest, but the fact that the allegation has been made.”  UKSC 11, para. 77 (emphasis added).
One of the authors of this post has argued elsewhere (here and here) that there are only two general circumstances where reportage should apply. The first is where the very fact of a dispute is of public interest (ie a dispute between two political/community leaders) and the second is where the public interest arises because of the status of the original speaker. Where, however, the public interest is in the allegations themselves – in particular, their truth or potential truth – ‘reportage has no role to play’. In such circumstances, the usual Reynolds requirement of verification should apply. See http://fortnightlyreview.com/tag/jason-bosland/.
This important distinction, however, has not been recognised in parliamentary debates on the bill. For example, Lord McNally explained that the clause was designed
“to catch the core elements. . . . These are where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication.” (Hansard, Column 199-200, February 5, 2013.)
Nor is the distinction reflected in wording of clause 4(2). The danger is that in failing to explicitly limit reportage to cases where the public interest is in the fact that allegations have been made, the bill is much wider than the existing law. In particular, the clause asks whether it was “reasonable for the defendant to believe that publishing the statement was in the public interest.” This means that the courts could find the reportage defence satisfied on the basis of the public interest in the allegations themselves.
In order for the draft bill to reflect the current common law position, we suggest that clause 4(2) should be re-drafted in the following form:
If the statement complained of was, or formed part of, an accurate and impartial account of a dispute, the court may disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it where:
(a) the public interest is in the fact that a particular allegation has been made, and
(b) the allegation is attributed to the source.
If the clause is not amended as we have suggested, Lord Lester’s approach is the preferred option, but it is not entirely without concern. By removing the specific provision, reportage cases would fall under the general test set out in Clause 4(1). The question would then arise as to how to accommodate reportage within the new Public Interest Defence. Clause 4(1) covers statements that are “on a matter of public interest” and where the defendant “reasonably believed that publishing the statement complained of was in the public interest”. In a recent post, Hugh Tomlinson argued that “the focus of Reynolds and that of the proposed new defence are entirely different: Reynolds is about verification and truth, the new defence is about public interest. A person can reasonably believe that the publication of a statement is in the public interest without taking steps to verify its truth.” If Tomlinson is correct, then clause 4(1) could be interpreted in a manner that would erode the important distinction, as set out above, as to the nature of the public interest in a reportage as opposed to a non-reportage case.
On the other hand, the courts may simply choose to interpret the new legislation in accordance with the existing law. This of course would fail to achieve greater clarity as to the scope and application of reportage, raising the perhaps cynical question – what is the point?
Jason Bosland is a Senior Lecturer at Melbourne Law School and is Deputy Director of the Centre for Media and Communications Law. Sophie Walker is a research fellow at the Centre of Media and Communications Law at Melbourne Law School.