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Courts likely to look for evidence that journalists have verified alleged defamatory statements, says expert

Out-Law News | 15 Oct 2015 | 2:40 pm | 2 min. read

Journalists seeking to rely on the new 'public interest' defence to a claim of defamation will still have to be able to prove that they have taken steps to verify the accuracy of what they have published, an expert has said.

Tom Cottrell of Pinsent Masons, the law firm behind Out-Law.com, was commenting after the Privy Council ruled that Dominican journalist Lennox Linton could not rely on the so-called 'Reynolds defence' because he had not sufficiently investigated whether allegations he had published about accountant Kieron Pinard-Byrne were true.

The Reynolds defence, named for case involving former Irish prime minister Albert Reynolds in 2001, allowed publishers to defend responsible journalism published in the public interest from defamation claims. It was abolished in England and Wales by the 2013 Defamation Act, which replaced it with a statutory defence of 'publication on matter of public interest'.

"It would, however, seem likely that the court will adopt a similar approach when considering whether the 'defendant reasonably believed that publishing the statement complained of was in the public interest' as required by that Act," Cottrell said.

"The Privy Council decision acts as a helpful reminder that publishers seeking to rely upon a Reynolds privilege defence must provide persuasive evidence demonstrating that it was in the public interest to publish the statements complained of. It is not sufficient for a defendant to simply show that the subject matter of the publication was one of public interest or public importance, and the decision confirms the need for a defendant to properly evidence the steps that it has taken to establish and verify the truth and accuracy of the statements complained of," he said.

The Judicial Committee of the Privy Council acts as the highest appeal court for several independent Commonwealth countries, and this case was a referral from the Court of Appeal of the Eastern Caribbean Supreme Court. Pinard-Byrne had sued Linton for defamation after the journalist had accused him on the radio and in an article on a website of permitting the publication of falsified hotel company accounts, and of personally benefitting "to the tune of hundreds of thousands of dollars" from a collapsed infrastructure project.

Pinard-Byrne's case was upheld by the original trial judge, who noted that Linton had made the statements as statements of fact but had not been able to demonstrate that they were true. In particular, he had not contacted any experts in accounting or auditing to verify that Pinard-Byrne's work had not been professional or had failed to reach generally accepted audit standards. This was overturned by the appeal court, which held that Linton had conducted sufficient investigations to justify his statements in the public interest.

However, the Privy Council disagreed. Pinard-Byrne's case was based on Linton's allegations of his professional dishonesty and not, as the appeal court suggested in its judgment, that the project had been badly managed and the accountant was partly responsible, it said. While the Linton made some investigations into the latter, he was unable to prove the former, it said.

"As the Board [of the Privy Council] sees it, it is not sufficient for the court to focus on the underlying circumstances," it said in its judgment. "Thus [it] is not sufficient to say, as the Court of Appeal did, that the underlying project was a matter of public interest or a matter of public importance."

"The Board recognises that evidence that [Pinard-Byrne] was guilty of wrongdoing would be a matter of public importance. However, in the opinion of the Board, before making allegations to that effect it was the duty of [Linton] to carry out a reasonable investigation to ascertain whether they were true. The problem is that [Linton] did not carry out an investigation to that end. The Board accepts that, as the Court of Appeal concludes, he made some investigations into the project. There is however no evidence that he investigated whether [Pinard-Byrne] was guilty of the kind of wrongdoing alleged in the words complained of," it said.

Because of this, Linton was unable to rely on the Reynolds defence as this was based on "whether it was the duty of a responsible journalist to publish the material concerned", the Priby Council said.