Right to reputation and freedom of speech (from which freedom of press derives) are two rights that have an unusual relation as the strict application of the first one renders impossible the existence of the second, and vice versa. The simultaneous application of these two rights makes it compulsory to create a fair balance between them. The last decade in England has been a period of evolution for defamation law. These evolutions have consequently profoundly changed the balance between those two rights.
In order to analyze this evolution and its outcome, we will examine the balance drawn by the English legal system before the rise of the notion of ‘responsible journalism'; subsequently, we will look at the evolution of this balance from Reynolds v Times Newspapers Ltd to its more recent expansion in Michael Charman v Orion Publishing and Graeme McLagan. Finally, we will, in light of the two precedent sections, examine whether or not responsible journalism maintains a balance between freedom of expression and the right to protect a reputation.
‘The media are adequately protected by the defences of justification and fair comment at the moment, and it is salutary that these defences are available to them only if they have got their fact substantially correct' .
[...] Bibliography Gallant, S. & Epworth, J. (2001). Media Law, a practical guide to managing publication risks. 1st edition. London. Sweet & Maxwell Ltd. Price, D. & Duodu, K. (2004). [...]
[...] Reynolds v Times Newspapers Ltd [1998] 3 WLR 1010 Michael Charman v Orion Publishing and Graeme McLagan [2007] EWCA Civ 972 The Report of the Supreme Court Procedure Committee on Practice and Procedure in Defamation, July 1991. Code of Conduct, ratified by the British National Union of Journalist 29th June 1994 Slade J in Longdon-Griffiths v Smith [1951] 1 KB 295 Adam v Ward [1917] AC 309 Libel and the Media: the Chilling Effect. By Eric Barendt Reynolds v Times Newspaper Ltd [1998] 3 WLR 1010 Freedom of Speech, By Eric Brendt. P 2nd Editions. Oxford University Press. [...]
[...] 8th edition. Harlow. Pearson Education Ltd. Waever, Russell L. Kenyon, Andrew T. Partlett, David F. Walker, Clive P. (2004). Defamation law and free speech: Reynolds v. Times Newspapers and the English media. [...]
[...] However they recognised that media publication may be protected by an absolute defence when the information given was on of public interest. The House of Lord held that the circumstantial test laid down in appeal was not necessary and decided to join the test of duty and of interest under, the question of the entitlement the public to know this particular information”[10]. In order to answer to this question, and so to decide whether the defence of qualified privilege was available in a particular case, Lord Nicholls identified ten matters that should be taken in account in order to decide if the publication could use the qualified privilege defence: seriousness of the allegation; the nature of the information and the extent to which the subject matter was a matter of public concern; the source of the information; the steps taken to verify the information; the status of the information; the urgency of the matter; whether comment had been sought from the plaintiff; whether the article contained the gist of the plaintiff's side of the story; the tone of the article and the circumstances of the publication, including the timing”[11] The House of Lord held that the Times Newspapers could not rely on this defence because it did not comply with two points of those ten enunciated above. [...]
[...] However, the circumstantial test, concerning the circumstances of the publication and the defendant's sources of information, was not satisfied by the Sunday Times. The defence of qualified privilege was refused by the court of appeal to the Times Newspapers Ltd. The Times Newspapers challenged the court of appeal decision in the House of Lords. The Times Newspapers based its argument on the article 10 of the European Convention on Human Right in order to obtain an automatic common law qualified privilege defence in case concerning political publications of public interest. The House of Lords refused the creation of such a defence. [...]
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