The recent defamation case of Malik v Newspost Ltd & Others  EWHC 3063 considered various aspects of the defence of Reynolds privilege (Reynolds v Times Newspapers Ltd (2001) 2 AC 127 HL). Shahid Malik, the claimant, is a Member of Parliament and a government minister. Mr Malik sued Newspost Ltd (publisher of the Dewsbury Press), Danny Lockwood, (the newspaper’s editor) and Jonathan Scott, (a conservative councillor standing for re-election in Dewsbury South in the May 2006 local elections. Mr Scott was not reelected and raised certain concerns regarding the Labour Party campaign relating to the election. Mr Scott wrote to the Dewsbury Press raising these issues and his letter was published on 12 May 2006. He was also interviewed by the paper, discussing issues substantially similar to those raised in his letter. The paper published the resulting article on 19 May 2006.
Mr Malik argued that the letter and article accused him of using gangs of local Asian thugs to disrupt the voting in the 2006 Dewsbury South council elections and to threaten and intimidate voters, suggesting that he was guilty of serious criminal offences. He also argued that the article and letter in the Dewsbury Press suggested that he exhorted and improperly pressurised voters to vote according to ethnic or religious affiliations rather than according to their own political views or other legitimate considerations, thereby knowingly fuelling unrest and causing tension and racial divisions within the community. Because of this, Mr Malik argued the publications suggested that he is a racist and dangerous extremist unfit to hold public office as an MP.
The Defendants raised the public interest defence of the Reynolds privilege. The judge noted that the facts of this case differed notably from previous cases where Reynolds had been considered. First, it was held that neither of the relevant editions of the Dewsbury Press could be deemed to be investigative journalism, which, it has been previously held, the defence is intended to protect. Second, the judge observed that the issue of how far (if at all) Reynolds could be relied on by a contributor to a publication (e.g. Mr Scott), who is neither a journalist, nor performing the functions of a journalist, had not previously been considered.
The judge considered the broader public policy issues on which Reynolds was based. He observed that, sometimes it may be in the public interest for allegations to be generally disseminated thorough the media in ways other than investigative journalism (or journalism at all). It may be the information itself and the public interest in receiving it that is important, not the way it is conveyed. In these cases, the public policy considerations identified in Reynolds may well be engaged and privilege must not be ruled out completely simply because the circumstances are not exactly the same as those in earlier Reynolds cases.
In this case, the serious subject matter was held to be of public interest. However, that alone did not mean it was in the public interest to publish such allegations regardless of whether or not they were true. The judge held that, to rely on a public interest defence, defendants must fulfil certain criteria. The public interest requires that allegations, which may damage the reputations of those attacked and breach their rights under Article 8 of the European Convention on Human Rights, are filtered. The judge also noted that it is in the public interest to protect the reputations of public figures in some cases.
The judge held that it should be assumed that, if a publication can be shown to be in the public interest (regardless of its truth), then a social or moral duty to share the information can be assumed. However, to be fair and to protect reputations, certain safeguards must also exist. In Reynolds, the House of Lords identified 10 safeguards to be applied when considering this defence. They include asking what steps a newspaper has taken to verify a story and considering the seriousness of the relevant allegations.
It was held there was no authority allowing Mr Scott to make defamatory allegations directly to the public, (as opposed to merely reporting them) without having to prove they were substantially true. No defence of privilege was available to him for making such serious allegations directly to the general public. Regarding the newspaper, the judge decided that privilege would have applied to the allegations if certain steps had been taken, for example, obtaining a response from Mr Malik prior to publication and making other corroborative checks. Also, had both sides of the argument been fairly and neutrally reported, a reportage defence might have existed. The judge held that the facts of this case did not fit into either of these forms of privilege.
The judge accepted that the journalist who wrote the article had tried to contact Mr Malik on his mobile telephone. However, the attempts were unsuccessful and no further attempts to contact Mr Malik were made. The judge observed that, because of the seriousness of the allegations, more exhaustive efforts should have been made to give Mr Malik the chance to tell his side of the story. This was fatal to the newspaper’s defence of privilege.