If A newspaper report was fair and accurate a journalist's comments on its subject could be as robust and rude as he or she liked, Mr Albert Reynolds's lawyer has told the Court of Appeal in London. The third day of the appeal arising out of Mr Reynolds's libel case against the Sunday Times continued with arguments about qualified privilege.
The newspaper was appealing a decision in which the libel case judge ruled that no such privilege attached to the words in the article in November 1994 that brought about the case.
That part of the appeal will conclude today, and Mr Reynolds's lawyers will begin their appeal this afternoon. The action was taken over an article by Alan Ruddock at the time of the collapse of the coalition government and the resignation of Mr Reynolds as Taoiseach.
The jury found in November 1996 that the words were defamatory but awarded zero damages. The judge subsequently made an award of one penny.
Yesterday Mr Andrew Caldecott QC, for Mr Reynolds, continued his arguments that qualified privilege did not apply to the words complained of.
Referring to the article, he said that provided the report was fair and accurate it could be commented on as much as one liked. He conceded that if Mr Reynolds's defence in the Dail to allegations of lack of information had been given, then the journalist who wrote the article could have commented.
The article contained three elements which Mr Reynolds was concerned with. First, the newspaper was plainly alleging that Mr Reynolds had lied to the Dail and that was its own adopted allegation and had nothing to do with a third party. The allegation was not qualified in any way.
Then the article referred to an anonymous friend, and the last sting appeared in relation to how it portrayed what Mr Dick Spring said in the Dail.
Mr Caldecott said that Mr Reynolds's speech by way of explanation to the allegation by Mr Spring that he had not given full information to the Dail was made first.
"In Mr Spring's speech he nowhere says that Mr Reynolds told any lies," counsel said. If a newspaper chose to present its own allegation, then it must prove it.
The article mentioned a colleague of Mr Spring in relation to the allegation that Mr Reynolds had lied to the Dail. However, the reader did not know whether it was rumour or hearsay, and it was at the lower end of the status of information.
"When reporting on what Mr Spring said, the report attributed to Mr Spring an allegation of Mr Reynolds's lying that Mr Spring never made," Mr Caldecott stated.
Not a word of Mr Reynolds's explanation appeared in the report. Not only was that unfair but it gave the reader a false impression that he had no defence to offer.
The report was unfair, inaccurate and did not have the required status. How could there be a duty to give the public a garbled report which omitted Mr Reynolds's defence? counsel asked.
Would the ordinary person say it was a social duty to publish any material, no matter how badly researched and inaccurate, providing only that it was not malicious? Mr Caldecott said he considered any ordinary person would say they wanted the truth in material with special status. They would certainly be interested in hearing both sides of the story.
"If you have all these elements, then you can be as robust and rude as you like," he commented.
On qualified privilege applying to all political comment, Mr Caldecott argued that political debate and comment had increased rather than declined over the years.
There was an increase in common ownership of newspapers, there were crossovers with television stations and satellites, and there were very wealthy entities indeed.
Many newspapers now had insurance against libel claims. "The more political material, the more important it is not to have the media flooded with negligent material. It is a ground for not having this privilege," he argued.