26 Media Freedom: a New Concept in Free Speech
WITH THE WELCOME establishment of a public interest defence to a libel action, simultaneously abolishing the Reynolds (responsible journalism) defence, by the Defamation Act 2013 Parliament has brought English law into line with other democratic media laws.
In effect, it has redefined the phrase, ‘freedom of expression’ from its personal individual base of information, to that of the public interest in information to the institution publishing that information. It ceased to be an exclusively personal right. Thus the privilege of public information took on a constitutional status which many other democratic countries’ multifarious domestic and international obligations express in their constitutional documents. The unwritten constitution of England has always lagged behind in that attribute. The legal context of freedom of expression (including the concept of press freedom) becomes, in both theory and doctrine, media freedom.[CCXXXIX] Both Lord Hoffmann and Lady Hale had anticipated the jurisprudential label when considering the ambit in the Reynolds defence of responsible journalism. The constitutionalism of the freedom of expression is now firmly entrenched in modern democracies, which are pervaded by the extensive information of the internet. Based also on Article 10 of the European Convention on Human Rights, I attempted in the late 1990s to anticipate - unsuccessfully - the development of media freedom before the courts of the Republic of Ireland, in the context of the critique of criminal proceedings, including the English case of the Birmingham Six.Crime is an event of public interest, a good deal more than just of interest to the public. A criminal trial is an essential institution of a democratic society that is held in public and reported on by the
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media contemporaneously with absolute privilege in defamation law. The object was to plan that any media coverage, at the time of the criminal proceedings having concluded, or subsequently within a reasonable time, should qualify as a right that outbalances (overrides) any different claim to a defence of public interest. Such a modest judicial mood emulated the pre-2013 law of conferring a privilege on a fair and accurate report of legal proceedings. The reporting of criminal proceedings by the media accorded rights to anyone thereafter to comment. But it did not preclude action for defamation. The Defamation Act 2013 appears to change that position.