Public’s right to know and defamation

MINISTERS, officials and elected representatives routinely make comments. These are reported by the media and attract all kinds of comments, some adverse. As happened recently, when a lawmaker suggested a solution for rape of underage victims. Journalists and editors are often threatened with a lawsuit. This may discourage the paper from reporting; which ultimately thwarts the right of the public to know.

When can a newspaper report a speech or statement – which may be defamatory – and yet successfully fend off any threat of a lawsuit?

Because the media occupies a special role in a democracy it is given the right to publish such matters. It's about free speech. If sued, it can raise the defence of qualified privilege. Under our Defamation Act it had to prove a duty to publish to the general public; and that the public had a corresponding duty to receive the information. This rather narrow reciprocity test was really only applicable in exceptional cases – like warning the public of a suspected terrorist attack, or, the distribution of contaminated food or drugs.

Now this test has been modified. In recognition of the present-day role of the press in a modern democracy and the promotion of a free and vigorous press to keep the public informed. Newspapers address the public at large. They may be published overseas in London or New York – yet have a global readership. Like the Asian Wall Street Journal. The narrow reciprocity test may then be difficult to apply.

The new approach was ushered in by the 2001 English House of Lords decision, Reynolds v Times Newspapers Ltd. In 2007 it was further modified: Jameel v Wall Street Journal Europe. Now, as a matter law, if the publication is in the public interest, the duty and interest are assumed to exist. The importance of the subject matter creates the privilege. In short, the public is deemed to have an interest in receiving information of public interest; and the press is deemed to be under a duty to impart that information. This frees the court from looking at the facts of each case to ascertain this precise duty/interest relationship.

Our courts have accepted this development: "The concept of qualified privilege through the concept of responsible journalism gives a certain degree of latitude surrounding newspaper publications not available previously": Dato Anas Khatib Jaafar v Datuk Manja Ismail (2011).

Two requirements must be satisfied. First, that the report concerns a matter of genuine public interest. Second, that the steps taken to gather, verify and publish the information were responsible and fair. Let's examine each of these requirements.

Matter in the public interest

The published article, looked at as a whole, must concern a matter of public interest. But it cannot include any damaging allegations that are not a part of the story and do not contribute to the public interest. A certain amount of discretion is given to editors. "The fact that a judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence". That would make the publication of articles, which appear to be in the public interest, too risky and discourage investigative reporting, said the court. In other words, allowance is given for editorial judgment.

What constitutes "matters of public interest"? Not trivial matters or gossip such as the private conduct of celebrities – "tittle-tattle about the activities of footballers' wives and girlfriends interests". Nor information which is "newsworthy" – this is too subjective because it is based on the target audience, inclinations and interests of the particular publication. There must be some real public interest in having this information in the public domain.

Steps to verify information

The next test is whether the steps taken to gather, verify and publish the information were responsible and fair. This is what responsible journalism is about. The publisher must have good reason to believe the reliability of the source of the information. He must himself believe it to be true and that he did what he could to check the facts, although this depends on the gravity of the allegation reported. It includes giving someone named the opportunity to comment; and have a response published by the newspaper (although this is not a rigid rule). The tone of the report will also be relevant. A list of matters that ought to be taken into account to pass muster as "responsible journalism" have been adopted by our courts. Editors and journalists should have these on their desks when writing an article, as a guide.

Neutral reporting

For reporting what someone has said (neutral reportage) of statements which were defamatory, there is no need to seek verification. So long as it is made clear that the report does not adopt or support the allegations; and that it is presented in a fair, disinterested and neutral way.
Finally, our courts have recognised that this new approach is "consonant with the aspirations of modern society for transparency and accountability while protecting against blatant maligning of the reputation of individuals" per Prasad Sandosham FCJ in Dato Anas. As said Baroness Hale in Jameel: "We need more such serious journalism in this country and our defamation law should encourage rather than discourage it."

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