You are on page 1of 5

Editorial Committee of the Cambridge Law Journal

Defamation, Qualified Privilege and the European Convention on Human Rights

Author(s): Richard Mullender
Source: The Cambridge Law Journal, Vol. 58, No. 1 (Mar., 1999), pp. 15-18
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
Stable URL:
Accessed: 07-03-2017 11:21 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at

Cambridge University Press, Editorial Committee of the Cambridge Law Journal are
collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal

This content downloaded from on Tue, 07 Mar 2017 11:21:09 UTC
All use subject to
Case and Comment


ni selap tluaf fault pales into insignificance in comparison with the intervening
The actions of the young plaintiS and his friend came nowhere
near this level of unreasonableness. It is instructive to compare the
recent case of Mullin v. Richards [1998] 1 All E.R. 92O, deciding that
the degree of foresight expected of a child is not as great as that of
an adult, a point not mentioned in Jolley. More significant still is the
inconsistent obiter remark of Lord Woolf M.R. that, had he reached
a diSerent conclusion on foreseeabilitx he would have upheld the
trial judge's reduction of 25 per cent. for contributory negligence.
How can this be reconciled with the decision that the plaintiS's own
conduct broke the chain of causation, equivalent surely to a finding
of 100 per cent. contributory negligence?
Lord Woolf himself described this unfortunate decision as "a
tragedy for the plaintiS and those who care for him". To that list can
be added those who care about coherent and predictable principles
of remoteness of damage. Leave to appeal to the House of Lords was
granted and the plaintiff should be urged to fight on.




DEFAMATION law protects reputation while aSording a significant

measure of protection to freedom of expression. Valuable expressive
activity is protected by, inter alicX, a number of defences, including
qualified privilege. In order successfully to invoke this defences
defendants who honestly believe their factually false statements to
be true must meet two requirements. First, they must establish "an
interest or a duty, legal, social, or moral", to communicate the
relevant material to another (or others). Secondly, the recipient of
the material must be shown to have "a corresponding interest or
duty to receive it". (See Adam v. Ward [1917] A.C. 309, p. 334, per
Lord Atkinson.) The requirements of the qualified privilege defence
have recently been glossed by the Court of Appeal in Reynolds v.
Times Newspapers and Others [1998] 3 W.L.R. 862 (which is on
appeal to the House of Lords). While the Court can be regarded as
having extended the defence's scope, the position it has staked out is
not, in all respects, clear. As a result the quaSified privilege defence
may fail to meet the requirements of the right to freedom of
expression enunciated in Article 10 of the European Convention on
Human Rights (E.C.H.R.). (When the Human Rights Act 1998
comes into force, the E.C.H.R. will be an element of domestic law.-)

This content downloaded from on Tue, 07 Mar 2017 11:21:09 UTC
All use subject to
16 The Cambridge Law Journal [1999]

The claim in Reynolds concerned an articl

Sunday Times. The article related to a political c
of Ireland. This crisis culminated in the resignat
Albert Reynolds, from his post as Taoiseach (Pr
the collapse of his coalition government. In the
that the plaintiff had deliberately misled t
Parliament) and his Cabinet colleagues. For reaso
circumstances in which this article was pub
attention. The article was based on material
defendants by the "programme manager" of on
chief political rivals. Further, in the days p
publication, the defendants failed to alert the pl
factual allegations they planned to make con
defendants also failed to record the plaintiff's ac
in their publication.
In response to the plaintiff's claim, the defend
alia, qualified privilege. They argued that publi
served the public interest in the general disseminat
and discussion concerning political issues and th
elected politicians. Further, they argued that to allo
this defence would be consonant with Article 10 of the E.C.H.R. At
trial, French J. ruled that the defendants could not rely on qualified
privilege. The jury returned a verdict in the plaintiff's favour and he
was awarded lp in compensation. The plaintiff appealed, arguing
that there were inadequacies in the judge's summing up. The
defendants cross-appealed on the question whether they could rely
on qualified privilege in any subsequent retrial. The Court of Appeal
allowed Reynolds' appeal, ordered a new trial, and rejected the
defendants' cross-appeal.
Central to the defendants' cross-appeal were the following three
submissions (which they supported by reference to domestic, US, and
Commonwealth authority and jurisprudence of the European Court
of Human Rights). First, qualified privilege should be regarded as
protecting publication to the public of material concerning political
matters. Secondly, it is particularly important to make the qualified
privilege defence available to defendants in circumstances where their
publications concern the conduct of elected officials while performing
their public functions. Thirdly, to make the qualified privilege defence
available in the way urged would reduce the danger of defamation
law exerting an undesirable "chilling effect" on freedom of expression.
The defendants placed particular reliance on the New Zealand
Court of Appeal's recent decision in Lange v. Atkinson and Australian
Consolidated Press NZ Ltd. [1998] 3 N.Z.L.R. 424. Lange raised
issues much like those in Reynolds, since it concerned a claim by a

This content downloaded from on Tue, 07 Mar 2017 11:21:09 UTC
All use subject to
C.L.J. Case and Comment 17

former Prime Minister again

review of his performance in
Appeal held that the defenda
In a plurality judgment, R
Blanchard JJ. specified the
stated that "the wider public
generally published statements
of responsible and representa
about the performance . . . o
office". Further, the Court sta
plaintiffs must prove a defen
of the material published.
The Court of Appeal declin
lead. Instead, it set out a thr
defendant could successfully
limbs of this test (termed b
requirements) gloss the two r
in Adam. They do so by reco
publisher may have a duty to
public may have a correspond
framed the test's third limb th
of the material, and the circ
the publication should in th
absence of proof of express m
limbs, the Court stated that t
to be satisfied" than in the pa
the third limb of its test from a recent decision of the Australian
High Court. In Lange v. Australian Broadcasting Corporation (199
189 C.L.R. 520, the Australian High Court took the step of allowin
defendants to plead qualified privilege vis-d-vis politically significa
material communicated to the public. But, while fashioning t
(extended) qualified privilege defence, it restricted its availability
circumstances where defendants can .establish the "reasonableness" of
their conduct.
The Court of Appeal experienced no difficulty in applying its test
to the case before it. While concluding that the test's first two
requirements could be satisfied, it held that the third requirement
could not be met. It reached this conclusion in the light of, inter alia,
the source of the information on which the defendants' allegations
were based and the defendants' failure to record the plaintiff's
account of his conduct.
The Court of Appeal's decision sends out a mixed message that
can be expected to cause unease among newspaper editors. In stating
that the requirements of duty and interest can be satisfied more

This content downloaded from on Tue, 07 Mar 2017 11:21:09 UTC
All use subject to
18 The Cambridge Law Journal [1999]

readily than in past, the Court has adopted

favourable to defendants than in its earlier decisions. (See, for
example, Blackshaw v. Lord [1983] 2 All E.R. 311, p. 327, per
Stephenson L.J.) But the third limb of its test confers a broad
discretion on judges. The Court effectively concedes this point in
likening the test's third limb to the Australian High Court's
"reasonableness" requirement. The broad discretion established by
the Court will leave newspaper editors uncertain as to the scope of
the qualified privilege defence. This being so, the test's third limb can
be expected, other things being equal, to exert a chilling effect on
freedom of expression. Hence, the position stated by the Court may
fail to comply with Article 10 of the E.C.H.R.
A means by which to counter the threat of chilling effects
described above may be at hand. In Lange (in which leave to appeal
to the Privy Council has been given), the New Zealand Court of
Appeal considered and rejected a test requiring an assessment of the
reasonableness of a defendant's conduct. It concluded that such a
test would provide insufficient protection for freedom of expression.
It found what it considered to be a superior form of protection in
the requirement that plaintiffs must establish that defendants lacked
an honest belief in the truth of their statements. Further, the Ne
Zealand Court of Appeal found support for its decision in Article
of the E.C.H.R. and the jurisprudence relating to it. In light of the
points, it seems reasonable to conclude with the observation that th
House of Lords should, when deciding Reynolds, pay close attentio
to the New Zealand Court of Appeal's decision in Lange.

Richard Mullender



It is often to the advantage of a defendant sued on an inst

that appears to be a bill of exchange to argue that it is
instrument will then generally not be negotiable and s
judgment will not be available under R.S.C. Order 14. Cont
defences will be able to be raised and counterclaims made. I
instead of summary proceedings which the defendant w
denied leave to defend, the plaintiff will have to face the d
expense of a full trial. Hong Kong & Shanghai Banking Corp
G D Trade Co. Ltd. [1998] GL.G 238 (C.A.) is an example
The defendant alleged that the instruments in question w
payable "at a fixed and determinable future time" as requi
section 3(1) of the Bills of Exchange Act 1882 and so not bi

This content downloaded from on Tue, 07 Mar 2017 11:21:09 UTC
All use subject to