Law Report: Political information should not be privileged

"POLITICAL INFORMATION" as a new subject matter category of qualified privilege, whereby the publication of all such information would attract qualified privilege whatever the circumstances, should not be created.

The House of Lords (Lord Steyn and Lord Hope dissenting) upheld the decision of the Court of Appeal that the defendants were not entitled to rely on qualified privilege in action for libel brought against them by the plainitff.

In November 1994 there was a political crisis in Dublin which culminated in the resignation of the plaintiff as Taoiseach of Ireland and leader of the Fianna Fil party. The reasons for the plaintiff's resignation were of public significance and interest in the United Kingdom because of his personal identification with the Northern Ireland peace process, of which he was one of the chief architects. He announced his resignation in the Dil of the Irish parliament on 17 November 1994.

On the following Sunday the Sunday Times published an article in its British mainland edition entitled "Goodbye gombeen man", and sub-headed "Why a fib too far proved fatal for the political career of Ireland's peacemaker and Mr Fixit". The plaintiff took strong exception to the article, and commenced proceedings for libel.

At the trial, the judge ruled that the defendants were not entitled to rely on qualified privilege. Their appeal against that ruling was dismissed by the Court of Appeal, which held that in deciding whether an occasion was privileged the court should consider, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of those particular factors, the court treated them as matters going to a question ("the circumstantial test") separate from, and additional to, the conventional duty and interest questions, and held that, although the duty and interest tests were satisfied, the circumstantial test was not.

The defendants appealed, contending that a new category of privilege which derived from the subject matter alone, i.e. political information should be created, and that, malice apart, its publication should be privileged regardless of the status and source of the material.

Andrew Caldecott QC and Benjamin Hinchliff (Crockers Oswald Hickson) for the plaintiff; Lord Lester of Herne Hill QC, James Price QC and Pushpinder Saini (Theodore Goddard) for the defendants.

Lord Nicholls said that the formulation by the Court of Appeal of three questions in deciding whether an occasion was privileged gave rise to conceptual and practical difficulties and was best avoided. There was no question separate from or additional to the duty and interest questions. Rather, the nature, status and source of the material and the circumstances of its publication were to be taken into account in deciding whether the duty and interest tests were satisfied.

The common law should not develop "political information" as a new subject matter category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern.

The elasticity of the common law principle enabled interference with freedom of speech to be confined to what was necessary in the circumstances of the case. The court should be slow to conclude that a publication was not in the public interest, especially when the information was in the field of political discussion.

In the present case, whilst the subject matter of the article was undoubtedly of public concern in this country, the serious allegations against the plaintiff, presented as statements of fact but shorn of all mention of the plaintiff's considered explanation, were not information which the public had a right to know.