Balancing Freedom of Expression and the Right to Reputation: Reflections on Reynolds and Reportage
![handle is hein.journals/nilq63 and id is 63 raw text is: NILQ 63(1): 59-74
Balancing freedom of expression and the
right to reputation: reflections on Reynolds
and reportage
ERIc BARENDT
Emeritus Professor of Law, University College London*
1 Introduction
The Law Lords in Reynolds v Timnes Nenpapers1 were fully aware of the importance of the
Jtwo rights at stake in the case - the right to freedon of expression and the right to
reputation - and the need to strike an appropriate balance between them. For Lord Nicholls
in the Lords' leading speech, the starting point is freedom of expression and [t]he high
importance of freedom to impart and receive information and ideas, but he also brought
out the significance of the right to reputation which is to be regarded as an integral and
important part ot the dignity of the individual.2 Its protection was not only in the public
interest, but it further served the interests of the individual whose standing might be ruined
for ever by the publication of defamatory allegations, whether they were true or false.
Without an enforceable right to reputation a politician or other prominent figure might be
unjustly hounded out of public life, while ordinary individuals might find it impossible to
secure employment or do business unless the) can clear their name.
In that landmark case, the House of Lords formulated an extended qualified privilege
defence to a libel action, so that the defendant is not liable if he or she has published false
defamatory allegations on a matter of public interest, provided that in publishing them the
requirements of responsible journalism have been satisfied. It became clear in later
decisions that this amounted to a new form of qualified privilege,3 quite different from the
traditional heads of this privilege where the question is whether the defamatory allegations
have been published on a privileged occasion, for example, in the course of
communications between civil servants or in a reference sent to a prospective employer. For
the first time in English law the media may have a defence if it publishes untrue factual
defamatory allegations on a matter of public interest, as long as it has behaved responsibly
by, for example, relying on trustworthy sources and by checking the story with the claimant
and others before deciding to publish it. Reynolds took greater account of freedom of
I am indebted to Richard Rampton QC, Paul Mitchell, Jason Boland and an anony mous reviewer for their
comments on a draft of this article.
1 [1999] 4 All ER 609.
2 Ibid. 62 12.
3 See Lutc n. v Times Nespapers [2002] 1 All FR 652, where Lord Phillips MR said, at para. 35, that
Reyno d privilege is . . . a different jurisprudential creature from the traditional form of privilege from which
it sprang.](ViewImageLocal?handle=hein.journals/nilq63&div=8&collection=&method=preview&ext=.png&size=3)
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Balancing Freedom of Expression and the Right to Reputation: Reflections on Reynolds and Reportage
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