Reynolds under new ECHR spotlight

Article 10 decision may call for re-appraisal

The European Court of Human Rights has this week handed down a significant judgment which may require the English court to review its approach to the application of the public interest qualified privilege defence under Reynolds.

On 16 November 2004 the Strasbourg court by a majority found a breach of Article 10 in the case of Selistö v Finland. The applicant journalist wrote two articles in a regional daily newspaper describing the allegedly unprofessional behaviour of a surgeon, X.  It was alleged that his behaviour had caused a death; in particular he was said to have been drunk or hungover while performing an operation in which a patient died.  A criminal investigation had concluded that there was no evidence of criminality against the surgeon.  The domestic courts found that the reporting was selective and the overall tone condemnatory, and the journalist was convicted of defamation.

In a decision which appears significantly pro-media, the ECHR found  that although the allegations had not been put to X prior to publication, he had been provided with an opportunity to state his side of the story afterwards.  Further, the Court found that the articles were protected by Article 10 even though the applicant had failed to verify the facts appropriately, had quoted selectively from documents, and omitted reference to the fact that X had been cleared after an investigation.  The British Judge, Sir Nicholas Bratza, gave a dissenting judgment.

In contrast to Selistö, the English Reynolds cases suggest that a failure to raise the proposed allegations with the Claimant before publication coupled with an omission to state his side of the story would normally be fatal to the prospects of a successful qualified privilege defence.  Moreover, provision of an opportunity to reply after publication would be considered irrelevant.