Reynolds Privilege, Media Freedom And English Defamation Law Reform

The English defamation law has been criticized for over-protecting the right to reputation and imposing a serious chilling effect on journalism. As a result, the aim of English defamation law reform in 21th century is to strike a fair balance between the right to reputation and media freedom.In October 1999, the House of Lords of United Kingdom in Reynolds v Times Newspapers Ltd established'Reynolds privilege'as an important defence to protect media freedom. According to this defence, media defendants would be immunized from libel actions by showing that the publication of news reports was in public interest and the journalists and editors acted in accordance with the responsible journalism standard.However, the defence is far from perfect. With the support from the UK Government, a new round of English defamation law reform was launched in June 2010. The reform involves many aspects, including improvements in the Reynolds privilege.This dissertation consists two parts. The first part examines the developments in English defamation common law, including how the House of Lords introduced Reynolds privilege, developments of Reynolds privilege in lower courts, and what problems existed in lower courts, and discusses to what extent Reynolds privilege brought about real protection for media freedom. This part analyzes 10 media libel cases in which media defendants used Reynolds privilege. The judgments of these cases, a total of 19, are from courts of England and Wales including High Court and the Court of Appeal, and the House of Lords.The second part of this dissertation examines reform proposals about Reynolds privilege in the new round of English defamation law reform, and discusses how the UK Ministry of Justice has attempted to modify Reynolds privilege so to tackle problems of this defence in the common law developments and to incorporate a new statutory defence. This part analyzes two reports published respectively by the UK Parliament and the UK Government early in 2009, the Private Member's Bill introduced by Lord Lester in May 2010, and the Draft Defamation Bill and its consultation paper published by the UK Ministry of Justice in March 2011.This study concludes that 1) Although it is the intention of the House of Lords to protect media freedom, especially to protect investigative journalism, from the threat of libel actions by Reynolds privilege, the defence requires journalists and editors to act in accordance with standards set by judges; 2) The House of Lords listed ten non-exhaustive factors to test whether media defendants acted responsibly, but many judges from lower courts didn't apply them in a practical and flexible manner, some judges even treated them as ten hurdles media defendants must pass before they could successfully rely on Reynolds privilege; 3) These problems caused a big degree of uncertainty and unpredictability, and it has become very difficult for media defendants to rely on Reynolds privilege to succeed in libel actions; 4) The complexity of the Reynolds privilege has also imposed a big burden of proof on media defendants and incurred increased litigation costs; 5) Developed from Reynolds privilege,'the doctrine of reportage'has, to some extent, provided a effective defence for media defendants. But the scope of the doctrine of reportage remains narrow. It only provides protection for media defendants if they has fully and neutrally reported an ongoing dispute; 6) The UK Ministry of Justice aimed to clarify the classic Reynolds privilege and the doctrine of reportage on a statutory footing, but clauses of the proposed statutory defence in Draft Defamation Bill simply codified the defence and the doctrine currently available in common law and has not gone much further. The only novelty is that the proposed statutory defence will extend the classic Reynolds privilege to expression of opinion. However, the problem of a degree of overlap between this defence and proposed honest opinion defence remains unresolved.