The newspapers' favourite defence to a defamation claim is that, regardless of the truth of a published allegation, the publication was in the public interest. In 2001, in the seminal case of Reynolds v The Times, the House of Lords decided that newspapers could benefit from this defence, where the subject matter was of sufficient public importance and where the defendant had behaved responsibly as a journalist. Since that case, the lower courts have interpreted this in a restrictive manner, and newspapers have rarely succeeded with the defence. However, the House of Lords yesterday in Jameel v Wall Street Journal Europe [2006] UKHL 44 tilted the balance back in the newspapers' favour, ruling that the defence had been interpreted too restrictively.

This is bad news for claimants, as it will make it easier for journalists to defend articles even where they are wholly untrue. However, newspapers will still need to establish that the issues were sufficiently important to the public and that that they were justified in publishing what turned out to be an inaccurate report.

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Public interest defence for newspapers made easier

The House of Lords in the case of Jameel v Wall Street Journal yesterday addressed the application of the public interest (qualified privilege) defence to defamation. To date, very few cases have succeeded in using the defence. The defence was established by the case of Reynolds v The Times [2001] 2 A.C 127. Journalists can rely on the defence, providing the defamatory article was published in the public interest and the journalist met certain standards of 'responsible journalism'. In the Reynolds case, Lord Nicholls set out a set of criteria by which the courts could judge if a journalist had acted responsibly (for example, by taking appropriate steps to verify information and seeking comment from the claimant). The lower courts have been stringent in applying each of Lord Nicolls' criteria, often allowing the defence to fail when all were not met.

Yesterday, the Lords applied the test for responsible journalism more flexibly, and stated that a defendant need not satisfy every component of Lord Nicolls’ test to succeed. As a result, it seems that many more defendants may benefit from this defence. In the future we may see newspapers placing greater reliance on the qualified privilege defence, rather than placating the individual or company it has defamed.

However, while newspapers may find it easier to show that they have acted responsibly in publishing a defamatory article, the Lords stressed that to succeed with a Reynolds’s privilege defence, the defendant would still need to convince the courts that the defamatory article is in the public interest, and, as Lord Hoffman put it, "the newspapers are not often the best judges of where the line should be drawn".

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 12/10/2006.