Yeo v Times Newspapers Ltd - court provides guidance on Reynolds defence

Yeo v Times Newspapers Ltd - court provides guidance on Reynolds defence

Following an unsuccessful libel claim by Tim Yeo, former MP, against the Times Newspapers Ltd (Yeo v Times Newspapers Ltd  [2015] EWHC 3375 (QB)), what lessons can be learnt about the scope of the Reynolds privilege and the application of Article 8 in defamation claims?

What is the background to this dispute?

In May 2013, Mr Yeo, then Chair of the House of Commons Energy and Climate Change Select Committee, was approached by two undercover journalists posing as representatives for a solar energy technology company. Mr Yeo agreed to a lunch meeting with the undercover journalists in which he was asked about undertaking paid consultancy work. The meeting was covertly filmed. After giving Mr Yeo the opportunity to comment on their proposed coverage of the meeting, the Sunday Times published two articles containing ‘cash for advocacy’ allegations against Mr Yeo which resulted in Mr Yeo issuing a libel claim against Times Newspapers Ltd (TNL).

At a pre-trial hearing in June 2014 (Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB)) the court determined that the meaning of the articles published by the Sunday Times was that Mr Yeo was prepared to, and had offered to, act in a way that was in breach of the Code of Conduct of the House of Commons by acting as a paid parliamentary advocate.

At a pre-trial review in July 2015 (Yeo v Times Newspapers Ltd [2015] EWHC 2132 (QB), [2015] All ER (D) 282 (Jul)) the court refused to lay ground rules as to parliamentary privilege, to strike out the claim as to the second article and to amend the claimant’s costs budget. However, it struck out parts of the claimant’s witness statement and case. For further commentary see News Analysis.

[caption id="attachment_5551" align="alignnone" width="300"] (c) James Cridland[/caption]

What were the key issues at trial?

The key issue at trial was whether TNL’s defences could be made out. TNL denied that the statements were defamatory but in the alternative pleaded the following defences:

  1. the factual meanings of the articles are true (justification)
  2. the comment was fair comment and/or
  3. the content of each article represented responsible journalism on matters of public interest (also known as Reynolds privilege)

What was the court's view on TNL's reliance on the Reynolds defence?

The Reynolds defence (or Reynolds privilege) protects publication of defamatory statements where a publisher can prove that publication was in the public interest and that the publisher acted responsibly (Reynolds v Times Newspapers [1999] All ER (D) 1172). The Reynolds defence was abolished by the Defamation Act 2013 (DA 2013) (not yet implemented on the date of this claim) but the common law principles are enshrined in DA 2013, s 4.

The court had no difficulty in finding that the articles satisfied the public interest test. The key issue was whether the journalists/TNL had behaved responsibly and this issue prompted a comprehensive review of case law in this area (at para [133]). The court found that the journalist’s duty to be fair and to reflect the ‘totality’ of the evidence should not be taken literally:

‘It is not incumbent on the responsible journalist to lay out for the reader all the pros and cons relevant to a particular conclusion.’ (para [179])

It was unrealistic that TNL would publish the entire transcript of the meeting with Mr Yeo. Instead, the court found, it was permissible to be selective—a journalist’s role being to distil information rather than archive. While there were things the journalists could have done better, the overall picture was that the journalists had acted responsibly—for example, by sending a ‘front up’ letter to Mr Yeo two days ahead of publication, affording him an opportunity to comment.

How did the court rule on the claimant's article 8 claim?

Article 8 of the European Convention on Human Rights provides protection for an individual’s private and family life. Following consideration of case law, the court considered that key issues for consideration of art 8 in the context of a defamation claim are whether the information to be disclosed falls within the sphere of private life, the status of the individual concerned and whether publication undermines ‘personal integrity’ as opposed to merely harming reputation.

On the facts of this case, the court found that the articles related wholly and exclusively to Mr Yeo’s pubic roles as MP and Chair of a Parliamentary committee. As such the nature of the information did not engage art 8. This serves as a useful reminder that someone in public life, such as a politician, will have a limited protection from intrusion when they are carrying out their official duties (Krone Verlag GmbH & Co KG v Austria (No 2) (App no 34315/96), judgment of 26 February 2002).

What can publishers learn from this judgment?

This case is a useful demonstration of the operation of the Reynolds defence where the public interest is in the publication and the journalism meets the required standards of responsibility. This case affirms that journalists’ conduct does not have to be perfect and that the courts should take a flexible approach in applying the Reynolds defence. For example, it may have been responsible for the journalists in this case to provide Mr Yeo with a full transcript of the meeting prior to publication. However, on the facts, the ‘front up’ letter sent two days ahead of publication was deemed to carry sufficient detail to allow Mr Yeo an opportunity to comment.

Helpfully, the court indicated that the approach to the new statutory ‘public interest’ defence (DA 2013, s 4) is likely to follow the approach taken in cases pleading the Reynolds defence. The explanatory notes to DA 2013 indicate that the new defence is a mere codification of the common law. This means that the significant body of jurisprudence in this area remains as relevant to defamation claims today as ever.

Jessica Stretch, solicitor in the Lexis®PSL IP & IT team.

This article is republished with kind permission of WIPIT’s sister site, Lexis®PSL IP & IT. For a free trial click here. The views expressed in this article are not necessarily those of the proprietor.  

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