The law recognises that there are circumstances where it is in the public interest to permit greater freedom of speech.
Qualified privilege exists as a defence under the Defamation Act 1996 because the law accepts that there are occasions when people should be at liberty to express themselves freely even when, in doing so, a third party is defamed.
Under section 15 of the Defamation Act 1996 the publication of any report or other statement mentioned in Schedule 1 to the Defamation Act is privileged unless the publication is shown to be made with ‘malice’. The Defamation Act does not itself define malice, but it can consist of either awareness of or recklessness as to the untruth of the statement; a dominant improper motive in making a statement; or misuse of the occasion for which privilege exists.
The defence of qualified privilege covers fair and accurate reporting of Parliament, legal proceedings and matters listed in Schedule 1 of the Defamation Act 1996. It is also held to protect freedom of speech in specific circumstances under the common law ‘responsible journalism’ defence to a claim in libel.
The Reynolds principle was not introduced by the Defamation Act 1996 but established by the case of Reynolds v Times Newspapers . In this case the House of Lords established that, in determining whether the public had a right to know the published information, the court would assess whether it was of sufficient value to the public that it was in the public interest and should be protected by privilege. Lord Nicholls in his judgment in the Reynolds case set out ten “illustrative circumstances” which are required to be considered, such as the seriousness of the allegation, the nature of the information and what steps were taken to verify the information.