To what extent does the Privy Council’s decision in Pinard-Byrne v Linton  UKPC 41 clarify our understanding of the application of the Reynolds defence? Greg Callus, barrister at 5RB, considers the judgment in the context of the developing landscape of defamation.
What is the background to this appeal?
In the early 1990s, Dominica sought significant inward investment. One policy to encourage this was ‘economic citizenship’, which would give Dominican citizenship to investors and their families. Planned infrastructure included a new airport and hotels, all under a major redevelopment called the Layou River Project.
The claimant, Kieron Pinard-Byrne (KPB) was the owners’ representative on the Layou River Project from 1995, and a partner of the accountancy firm which audited the Oriental Hotel (Dominica) Ltd (OHDL) being the holding company for the Layou River Project. In 1998, KPB left to found his own firms, one of which took over as auditors, and the other acted as company secretary for OHDL.
The Layou River Project was never completed because of natural disasters (mountain collapse and flooding) in 1997, as well as construction fraud, and contractual disputes. Shareholders in OHDL lost money.
Between 2001 and 2003, KPB was accused of wrongdoing by the defendant Lennox Linton (LL) on a number of occasions, calling into a radio broadcast where KPB was being interviewed, and in written online media.
The judge found that the meaning of the words complained of was that KPB had acted discreditably, even criminally, in his capacity as liquidator of a hotel, and that the words complained of accused him of siphoning money from the economic citizenship programme.
The judge found, and the Court of Appeal of the Eastern Carribbean Supreme Court upheld, that there was no basis on which these allegations could be justified as true, nor could they be characterised as ‘comment’. LL did not cross-appeal these rulings to the Judicial Committee of the Privy Council.
The sole issue for the Privy Council was whether the Court of Appeal was right to have overruled the judge on the issue of the Reynolds privilege (a qualified privilege in respect of responsible journalism). The judge held that the defence was not made out; the Court of Appeal disagreed. KPB appealed to the Privy Council.
What is Reynolds privilege and why was it abolished by the Defamation Act 2013 (DeA 2013)?
Defamation law recognises that, even though a defamatory statement is an untrue (ie there is no defence of justification) statement of fact (ie no defence of fair comment), there are circumstances that nonetheless excuse publication. These circumstances give rise to defences based on privilege, which allows for overriding public policy considerations. Some privilege is absolute (parliamentary privilege, witnesses giving evidence in court). However, most privilege is qualified (so it can be undone if the claimant can prove malice).
Qualified privilege generally arises in circumstances where the publisher has a duty (legal, moral or social) to impart information, and the publishee has a corresponding duty or interest in receiving it—for example, a person who reports a crime to the police.
In Reynolds v Times Newspapers, the House of Lords recognised that qualified privilege could exist as between the mass media and their readership where the defamatory statement was made as a result of ‘responsible journalism’ on matters of public concern (notwithstanding that the statement was untrue). Lord Nicholls’ judgment for the majority gave ten illustrative, non-exhaustive criteria that would inform a fact-specific exercise as to whether the Reynolds defence (or Reynolds privilege) would obtain.
The Reynolds defence was abolished in England and Wales by DeA 2013, s 4, which replaced it with a new statutory defence of ‘Publication on a matter of public interest’. The explanatory notes to the legislation suggest that this is a mere codification of the common law, as most recently developed in this jurisdiction by the UK Supreme Court in Flood v Times Newspapers Ltd  UKSC 11,  IP & T 867.
What did the Privy Council decide?
The Privy Council advised that KPB’s appeal should be allowed. The Court of Appeal were wrong to interfere in the trial judge’s decision that the Reynolds defence was not made out.
The error in the Court of Appeal’s decision was that they had found it sufficient that LL had conducted some investigation into the failure of the Layou River Project and that the failure of the Layou River Project generally was a matter of public concern and importance. However, the Reynolds defence actually required that reporting the defamatory statements themselves was in the public interest and done with a reasonable and honest belief that it was in the public interest to report them.
LL had conducted no investigation into the defamatory allegations he had made against KPB, and had adduced no evidence of the truth of them at trial. He gave the impression to the judge of personal animosity towards KPB, rather than an unbiased search for truth. LL had no personal expertise to judge the truth of the allegations, nor had he sought such advice. He had not put the allegations to KPB fairly prior to publication. In all the circumstances, LL could not have properly considered the publication of the defamatory statements to have been in the public interest.
Does this decision clarify the circumstances in which the media can rely on a defence of public interest?
The Reynolds defence was clarified significantly by the Supreme Court in Flood, but this emphasises that it must be publication of the (untrue) defamatory allegations that must be justified as being in the public interest, not the publication of the story generally. There are also useful dicta at para  confirming that reporting wrongdoing to the authorities is not a pre-condition for a journalist seeking to avail themselves of a public interest defence. The decision will doubtless also be cited by victors at trial for the proposition that a trial judge’s decision on such a fact-sensitive defence should be accorded due respect by appellate courts.
Greg Callus is a barrister at 5RB, practising primarily in the fields of defamation, privacy/data protection, commercial litigation and public law.
Interviewed by Lucy Karsten.
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