John Rubenstein is head of the IP technology and media group at Manches & Co.
The Court of Appeal last week significantly protected individual human rights.
The case concerned the claimed right of a newspaper to defame an individual without liability by repeating privileged communications in an unprivileged context.
The law gives publishers of defamatory statements protection if the statements were spoken by others in open court or in parliamentary proceedings and the publisher accurately repeats what was said. Public interest dictates that the media should not be prevented from reporting what is happening.
But the law has not conferred the same privilege on those who repeat allegations contained in documents (other than writs) which are prepared in the course of court proceedings and have not been read out in open court. In that case protecting individual reputations outweighs the right of the public to be told of the allegations, which might otherwise not have been reported without exposure to a libel claim.
In Stern v Piper et al (Times 30 May 1996) the defendants, including the Mail On Sunday, tried to hugely extend the Repetition Rule. This rule states: if D publishes a statement, made by X, that P had acted disreputably, D will be liable for the defamation, as will X, assuming it is not true that P had acted disreputably.
The exception to this is if either D or X can claim absolute or qualified privilege to protect their utterance from suit.
The Mail on Sunday, wanted to extend the exception to cover the contents of an affirmation not referred to in open court and used outside the context of current proceedings, which it had published and which defamed the plaintiff.
When the plaintiff sued, the Mail on Sunday claimed justification of the defamatory allegations because it was true X had affirmed defamatory allegations about the plaintiff.
If we accept this argument, then what is to stop litigants commencing an action and immediately swearing an affidavit in which they blackguard their bete noire, send a copy to the newspapers, and get their opponent ruined in a fury of news-printed libel, all of which is protected under the new Mail on Sunday rule?
Answer – the public interest and the law. The Court of Appeal, striking out this defence, was not impressed with the latest grab by the Press at power without responsibility.