APPENDICES

APPENDICES

corresponding duty or interest in receiving that material.295 One aspect of qualified privilege of particular relevance is the application of the duty and interest argument to publication of material in the public interest, as articulated by the House of Lords in Reynolds v Times Newspapers Ltd.296

¶3.173 The defence of Reynolds privilege has recently been comprehensively analysed by the

Supreme Court in Flood v Times Newspapers Limited.297 This defence will protect publication of a defamatory matter where i) it is in the public interest that the information should be published and ii) the publisher has acted responsibly in publishing information.298 This defence is accurately described as a public interest defence.299

¶3.174 In respect of the first element, the courts have recognised that this is not a black and white

test, but rather it is necessary to consider "the extent to which the subject matter is a matter of public concern". The publisher must show that the publication was in the public interest, and this must go further than merely showing that the subject matter was of public interest.300 The test adopted by Lady Hale in Jameel that "there must be some real public interest in having this information in the public domain" was supported by Lord Phillips in Flood.301 The Reynolds privilege requires a balancing exercise between the importance of the public interest in receiving the relevant information and the public interest in preventing the dissemination of defamatory allegations with the injury to reputation that results.302 Ultimately each case will turn on its own facts, however the seriousness of the allegation is a significant factor in assessing where the balance should be struck between the public interest in receiving information and the potential harm caused if an individual is defamed.303 In respect of the public interest in publishing allegations made and being investigated against a senior police officer, the Supreme Court placed weight on the fact that the publication was with a view to ensuring that the allegations were properly investigated by the police in circumstances where the journalist had reason to believe they were not being so investigated.304 Lord Mance explained that journalistic judgement carried weight in considering how much detail should be published, although any journalist must carefully consider the public interest in publishing allegations that have not been fully investigated or their accuracy determined.305

¶3.175 In Flood the Supreme Court addressed the extent of verification required before a journalist

can rely on the defence. The Court emphasised that the privilege will attach only if the journalist has acted honestly and reasonably believed the published facts to be true, although no hard and fast principles can be applied. Where a journalist alleges there are grounds for suspecting a person to be guilty of misconduct the responsible journalist should satisfy himself that grounds for suspicion exist (these can be derived from reliable sources or inferred from the fact of a police investigation), but he need not know what the grounds are.306

¶Appendix 4 | Legal Materials

¶3.176 The law also recognises, through common law and statute, a defence of innocent dissemination.

Section 1 of the Defamation Act 1996 sets out a defence for a person who was not the author, editor or publisher of the statement, who took reasonable care in relation to the publication of the statement and did not know and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. The common law defence protects defendants who did not know a publication contained a libel, or that the publication was of such a character that it was likely to contain a libel and the absence of such knowledge was not by reason of negligence.307

¶Remedies 3.177 Whilst the primary objective for persons upon being defamed (or threatened with defamation)

is to restrain publication, it is only in exceptional circumstances that the court will be content to grant an interim injunction restraining publication. Interim relief will be refused if the there is any proper basis for a believing a defence will be successful or that the claimant is only likely to recover nominal damages. Section 12 of the HRA will apply to an interim injunction sought in defamation claims and it has been held that nothing in this section weakens the common law rule that interim relief will only be granted if the material complained of is so clearly actionable that if a jury were to find for the defendant an appeal court would be obliged to set aside the jury's conclusion as unreasonable.308

¶3.178 Where a claimant is successful in a defamation trial, a permanent injunction restraining the

defendant from further publication of the defamatory material will be granted if it can be established that future publication is likely and would constitute an actionable wrong.

¶3.179 The principal mechanism for vindicating damage to reputation is an award of damages. The

law presumes that a defamatory publication has damaged the reputation of the claimant. Compensatory damages are awarded to compensate the damage to reputation and include damages for monetary loss occasioned by the attitude adopted by other persons towards the claimant (special damages) and damages for distress, hurt and humiliation. Aggravated damages may be awarded where the conduct of the defendant has increased the claimant's injury or where the defendant has acted improperly. Exemplary damages may be awarded in some cases to punish the defendant for particularly disgraceful conduct and where compensatory damages are inadequate in all the circumstances. A defendant who has given an apology prior to the commencement of the action may be able to mitigate the extent of an award of damages.

¶Application of the law of defamation to the internet 3.180 In an era where the internet has displaced nearly every other form of communication in

terms of its scope, use and geographical reach, the extent to which claims of defamation can be pursued against statements published on the internet is a pressing concern. The internet facilitates the communication of information and opinion to a global audience of billions of people on an instantaneous basis. Freedom of expression demands that regulation should not interfere with the potential of this source of information, however the internet poses a significance potential for abuse and unregulated activity, including defamatory statements, to be widely published.