The House of Lords has rejected by a 3-2 majority verdict an appeal by the Sunday Times newspaper claiming qualified privilege arising from the 1996 libel case brought against it by the former Taoiseach, Mr Albert Reynolds.
The newspaper had appealed to the law lords to define the law on the issue of qualified privilege it claimed justified the publication of an article in November 1994 which libelled Mr Reynolds when the Fianna Fail-Labour coalition collapsed and he resigned as Taoiseach.
The Sunday Times argued there should be qualified privilege in the context of political discussion regardless of the status, source and nature of the defamatory information, claiming the article dealt with matters of public interest and political debate.
The original trial in October 1996 had found that Mr Reynolds was libelled in the article, which appeared in the newspaper's English, Scottish and Welsh editions, alleging that he had in effect lied to the Dail in November 1994 about the political crisis facing the government of the day.
Mr Reynolds was eventually awarded damages of one penny on appeal and has subsequently won a retrial of the case. At the same time the Sunday Times lodged its appeal against the original trial ruling on grounds of qualified privilege.
In a five-minute judgment, given yesterday, the appellant committee of five law lords ruled against the Sunday Times, agreeing with a previous ruling against the newspaper on the same issue by the Court of Appeal that the article "was not a publication which should in the public interest be protected by qualified privilege in the absence of the proof of malice".
Lord Nicholls, presiding, said the appeal concerned the interaction between two fundamental rights: freedom of expression and protection of reputation. The Sun- day Times had contended that a libellous statement of fact made in the course of political discussion was free from liability if it was published in good faith.
Liability arose, he concluded, only if the journalist knew the statement was not true or the statement was made recklessly or if personal spite or an improper motive guided the writer.
Mr Reynolds, however, argued that liability could arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to publish the information.
The most telling criticism of the article, Lord Nicholls said, was that it had failed to include Mr Reynolds's explanation of the circumstances of his resignation in a Dail debate on November 16th, 1994.
While the author of the article was entitled to express his opinions "honestly and fearlessly" and "disbelieve and refute" Mr Reynolds's explanation, Lord Nicholls said, "this cannot be a good reason for omitting, from a hard-hitting article making serious allegations against a named individual, all mention of that person's own explanation".
Lord Hobhouse agreed with Lord Nicholls that qualified privilege was not justified. He said that to leave publishers to decide whether or not to publish and to uphold their privilege "would be handing to what are essentially commercial entities a power which would deprive the subjects of such publications of the protection against damaging misinformation".
Dismissing the Sunday Times appeal, Lord Cooke concluded that the libellous article was a "mixture of allegations of fact, comment and reporting" and that the sting of the article was that Mr Reynolds had "lied to and deceived by non-disclosure" the Dail and his colleague in government, Mr Dick Spring.
Allowing the appeal and arguing that the issue of qualified privilege should be considered at retrial, Lord Steyn said the case involved "a defamatory and factually false statement" which the newspaper believed to be true. The law should not be placed "in a rigid strait-jacket" and it was for a new judge, in the retrial, to decide whether the Sunday Times could claim qualified privilege.
Lord Hope concluded that the Sunday Times appeal should be upheld, saying that the issue of qualified privilege "seems to me still to be an open one" and should be reconsidered at retrial.