Mr Albert Reynolds yesterday attended the House of Lords in London for an appeal by the Sun- day Times on a legal issue centring on freedom of expression arising out of the libel case he took against the newspaper.
Last year, Mr Reynolds won a retrial in the Court of Appeal in London in his case. However, the Sunday Times lost its argument that it had qualified privilege when it wrote the article in November 1994 at the time the Fianna Fail-Labour coalition collapsed and Mr Reynolds resigned as Taoiseach. This was the point appealed to the House of Lords yesterday. The issue of qualified privilege will be defined in law by the law lords and, if the newspaper wins, could also be extended.
Lawyers for the newspaper began their submissions and will continue today while Mr Reynolds's legal team is expected to begin its arguments against the claim of qualified privilege tomorrow and conclude on Thursday.
The case has now continued for three years. In November 1996 a London High Court jury found Mr Reynolds was libelled but awarded zero damages which the judge altered to one penny.
Submissions were opened yesterday by Lord Lester QC, for the Sunday Times, who argued that qualified privilege existed to enable newspapers and others to report on politicians, even when they got it wrong, providing there was no malice.
The case raised important legal policy issues about the balance in a democratic society between two rights.
The first was the right of free expression and included the right to communicate and to receive information and opinions about the conduct of those elected, or seeking to be elected, to public office or seeking to exercise public powers. The second right concerned the protection of a politician's personal reputation.
Lord Lester said Mr Reynolds was in court but it made no difference if it was he or a British politician for the purpose of the appeal. The central questions of principle were whether and how common law qualified privilege extended to the publication by a newspaper of information and opinions strongly critical of the conduct and performance of an elected politician, or a candidate - criticisms which were untrue or could not be proved to be true.
"The law should be clarified to make sure publication in newspapers or elsewhere of political discussion about public conduct of an elected representative is protected subject to qualification imposed where a defendant takes unfair advantage of the privileged occasion through, in the case of newspapers, its irresponsible journalism and irresponsible process of editorial decision," Lord Lester submitted.
Restrictions on the right to free expression must be prescribed by law, that was, the law of defamation.
Parliament had now created a constitutional framework for declaring and applying the common law. Actual malice destroyed the privilege and covered not only an improper purpose or motive for publication but also a reckless disregard as to whether the publication was true or false. Lord Lester was asked by the law lords if a journalist overheard tittle-tattle in a pub could he or she not publish a fair an accurate report even though it might be in the public interest?
Lord Lester replied that there were a variety of institutions upon which newspapers could give a fair and accurate report of proceedings providing there was no actual malice. A pub naturally did not fall within this range of bodies.
"A newspaper which simply reported tittle-tattle and took no steps to verify it would forfeit qualified privilege," Lord Lester said. Lord Lester quoted research which showed that there had been an increase in defamation writs from 336 in 1993 to 560 in 1995. It was, he said, a growth industry, much to the pleasure of his learned friends.