Neil White on how far the Reynolds case bolsters free speech

Neil White is litigation partner at Taylor Joynson Garrett.

The Court of Appeal decision in Reynolds v Times Newspapers and Ors has been hailed as a breakthrough for free speech – but is it really quite such an advance?

Reynolds, former Irish Taoiseach, said The Times had accused him of lying to parliament and sued for libel. The Times relied on the defence of qualified privilege.

This protects untrue statements published by those with a legal or moral duty to publish them, where they are published honestly without malice. It has been called the public interest defence.

Historically, the defence has applied equally to the media and individuals. A special or extended category for the media has been rejected in the past.

The Court of Appeal has now opened the door a little way, and recognised the public has a legitimate right to be informed of matters of public importance. Therefore, newspapers and others performing that function can take advantage of the defence. But the impact has been reduced by the introduction of the "circumstantial test" which asks:

"Were the nature, status and source of the material and the circumstances of publication such that the publication should, in the public interest, be protected in the absence of proof of express malice."

It is this new test which creates doubt about the true impact of Reynolds. How will the court be satisfied about the status and source of material and the circumstances of publication? In journalism, information often comes from anonymous and unattributable sources.

But the court cannot perform the circumstantial test without information about sources. This gives journalists the dilemma of protecting and maintaining sources against the need to defend themselves.

The Press Gazette ran a recent guide to well known cases in which it analysed whether the defence would have applied under Reynolds. But it did not analyse whether it would have succeeded. The application of the circumstantial test may dampen the euphoria surrounding Reynolds.

In the end, The Times lost the case. Its source was the "programme manager" for the Leader of the Opposition – hardly the most authoritative and impartial.