Reynolds v Times Newspapers 
Qualified Privilege: Reynolds Defence.
The Times had published an article in Ireland stating that Reynolds, the former Irish Prime Minister, had misled the Irish Parliament. This article was subsequently published in the UK but did not include the explanation that Reynold's had given for the events, which had been printed in the original article.
Reynolds brought action for defamation. The defences of justification (see below) and fair comment were not available given the factual nature of the article. The question for the House of Lords was whether the defence of qualified privilege should be extended to cover the mass media.
In his judgement Lord Reynolds provided a list of 10 criteria against which attempts to use the Reynolds defence should be judged:
The elasticity of the common law principle enables interference with the freedom of speech to be confined to what is necessary in the circumstances of the case.
This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual is harmed, if the allegation is not true.
- The nature of the information and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff's side to the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations of a statement of fact.
- The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case.
Any disputes of primary fact will be a matter for the jury, if there is one.
The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege will be a matter for the judge.
This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgement than a jury. Over time, a valuable corpus of case law will be built up.