Sir, - John Waters's tunnel vision of contemporary legal history (Opinion, August 4th) leaves one in open-mouthed astonishment.
Mr Albert Reynolds's success in the English appeal court was limited: first, to obtaining an order for a new trial; and second, to the court's decision that the Sunday Times was outside the qualified privilege "public life" defence it set up for the first time in English law. The scope of this defence was elaborated in terms for which neither side had asked during the legal debate, and the Sunday Times is seeking leave to appeal the judgment to the House of Lords with a view to making it more "user-friendly" to the media.
The fundamental flaw in Mr Waters's case, which brings his elaborately argued edifice crashing to the ground, is his argument that this new defence effectively puts qualified privilege on the same footing as absolute privilege - thus affording journalists a "coward's cloak" to defame at will in reporting or commenting on public affairs. This is complete nonsense. Absolute privilege enables you to say what you like, when you like, and about whom you like, regardless of its truth or falsity, provided you air your views in the appropriate forum, such as parliament or in open court - and journalists have the same protection when reporting such utterances. Qualified privilege falls way, way short of that in protecting defamatory statements which, though honestly believed to be true, are in fact false. The publisher must establish first, the existence of a reciprocal duty and interest between him and the reader; second, that neither he nor the writer is actuated by malice in what he asserts; and third, that what the appeal court describes as the "circumstantial test" - requiring the writer to make appropriate efforts to check what he is saying in the light of the apparent reliability of his source - is satisfied. It thus creates a healthy, tightrope discipline, which any writer ignores at his peril.
The new defence is not within miles of the "licence to libel" Mr Waters suggests. The tone of his argument seems to be that the Sunday Times has pursued, and is pursuing, a quest of barely discernible value to either the media or the public at large, and - presumably - is for that reason wasting its time and money. I reject this analysis. In contrast to his narrow focus, we believe we are fighting for a flexible and worthwhile defence that can only broaden his and his colleagues' horizons for the benefit of all media audiences. - Yours, etc., Anthony Whitaker,
Legal Manager, Times Newspapers Ltd, Pennington Street, London €1.