Defamation: Public Interest Defence

What is the Public Interest Defence?

One of the defences to defamation is that of Qualified Privilege. One of the commonly argued qualified privilege is that of the public interest defence. The basis of this defence is that the person who is making the statement has a duty to do so and the person who hears/reads it has a corresponding interest in doing so.

The leading case at the moment for the public interest defence is that of Reynolds v Times Newspapers^[1]. This was a case in which the former Prime Minister of Ireland tried to take action following stories about how he conducted himself whilst in office.

The defendant in this claim argued that the story should automatically attract privilege as it was of a political context. The House of Lords (Supreme Court as it is now known) however felt that this would give newspapers carte blanche to write whatever they wanted and would severely restrict any opportunity to protect reputations.

So as an alternative the House of Lords provided a series of guidelines that newspapers should observe if they wish to forward an argument that the publication was responsible and in the public interest.

The Public Interest Defence Guidelines

This list is non-exhaustive but the media should consider it before they make any publication of a statement.

1. The Seriousness of the allegation. E.g. If the allegation is found to be untrue what will the harm be to to individual and what is the level of misinformation to the public.
2. The nature of the information and the extent to which the subject matter is a matter of public concern.
3. The source of the information and whether it is reliable or motivated by malice and/or avarice.
4. Whether suitable steps have been taken to verify the information
5. Whether the allegation in a story has already been the subject of an investigation which commands respect
6. Whether it is important that the story is published quickly
7. Whether comment was sought from the claimant, or whether that was not necessary in the context of the story
8. If the article includes the gist of the claimant’s version of events
9. Whether the article is written in such as a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation
10. The timing of the publication

These guidelines have since been applied by the court in several significant cases. One of the most well known cases in which the public interest defence was used is in Galloway v Telegraph Group Ltd^[2]. In this case the Court of Appeal held that the defendant had not observed these guidelines when they published embellished stories about the Claimant’s links to Saddam Hussein’s regime in Iraq.

It should also be noted that the public interest defence is also a part of the fair comment defence. In this instance the defence is used when the publisher/creator of the statement is able to demonstrate that the statement in question was one of opinion (not fact) and that it was made on a matter of public interest.