Tuesday, 9 February 2010

Public interest and Jameel

The test for the public interest is established in Jameel v. Wall St Journal Europe [2006] UKHL 44 per Scott L.:

  • "there is ... information the public interest of which is real and unmistakeable. In relation to information of that character it makes sense to speak of the newspapers having a "duty" to publish. They and their reporters should, of course, take such steps as are practicable to find the truth of what is reported. Fairness to those whose names appear in the newspapers may require, if it is practicable, an opportunity to comment being given to them and/or an opportunity to have a response published by the newspaper. These are all circumstances the weight of which in assessing whether a report should be protected by qualified privilege will vary from case to case."

Baroness Hale:
"It should now be entirely clear that the Reynolds Defence is a "different jurisprudential creature" from the law of privilege, although it is a natural development of that law. It springs from the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information. It is not helpful to analyse the particular case in terms of a specific duty and a specific right to know. That can, as experience since Reynolds has shown, very easily lead to a narrow and rigid approach which defeats its object. In truth, it is a defence of publication in the public interest."
"This does not mean a free for all to publish without being damned. The public only have a right to be told if two conditions are fulfilled. First, there must be a real public interest in communicating and receiving the information ...
Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think were reliable, that the publisher himself believed the information to be true and that he had done what he could to check it."

Is there a contrast with the ECHR, notably in LINDON (AND OTHERS) v FRANCE where J. Loucaides may indicate that some of its past decisions may have gone too far in protecting Article 10 rights against Article 8:

The suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and encourages the overall quality of public debate through a chilling effect on irresponsible journalism... The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process.

The right to reputation having the same legal status as freedom of speech as explained above is entitled to effective protection so that under any circumstances, any false defamatory statement, whether or not it is malicious and whether or not it may be inevitable for an uninhibited debate on public issues or the essential function of the press, should not be allowed to remain unchecked.

One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally, or occasionally even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore, they should remain legally accountable to the persons concerned for any false defamatory allegations.  Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.

No comments:

Post a Comment