Defamation – Libel – Qualified privilege – s.15 Defamation Act 1996 – Reynolds privilege – Reply to attack
In April 2004 the BBC West early evening news bulletin Points West broadcast a report concerning the outcome of an inquiry into allegations that waiting list figures at a local hospital had been systematically falsified. The broadcast contained part of a press conference given by a former employee of the hospital in which she named Marion Henry, the Claimant in this action, as one of the managers who had given instructions to junior members of staff to falsify waiting lists and had subsequently covered up the fraud.
The BBC relied on an amalgam of various species of qualified privilege; traditional common law (duty/interest and reply to attack); Reynolds and statutory privilege (fair and accurate report of governmental information and of a public meeting). Gray J had previously ordered that the issue of qualified privilege was to be tried separately from and prior to the BBC’s defence of justification.
The broadcast was not protected by statutory privilege, as the publication of the Claimant’s name was not of public concern and not for the public benefit, and because the BBC had refused, when asked, to publish a reasonable statement by way of explanation and contradiction. Whilst the ‘reply to attack’ nature of the statement made at the press conference could legitimately be taken into account as an eleventh Reynolds criterion, when stepping back and taking into account the whole of the broadcast, and the circumstances of publication, the publication of the broadcast was not in the public interest and the public did not have a right to know the allegations made against the Claimant in the press conference. The Reynolds defence therefore failed.
This case illustrates the flexibility of the Reynolds public interest defence. Although neither statutory privilege nor reply to attack privilege provided a complete defence for the BBC the Judge took into account elements from each defence, in addition to the Lord Nicholls’ 10 “non-exhaustive” criteria, in considering whether the public had a right to know the allegations made in the broadcast.
