The Reynolds Privilege in a Representative Democracy: A Case for Transnational Convergence

1. The Reynolds Privilege in a Representative Democracy:A Case for Transnational Convergence Dr David Tan Asst Prof, Faculty of Law

2. Albert Reynolds Lee Kuan Yew David Lange

3. Representative Democracy • Framework of government in Constitution • Elected representatives to Parliament for a fixed term • System of responsible and accountable government

4. Political Communication • In order for the public to exercise their constitutional right to elect representatives to Parliament – make an informed choice – they require information on the candidates and matters relating to relevant issues of the day • This flow of information must continue even after the election period as the public need to know if the elected representatives to Parliament are performing their duties – “matters of public interest” • If the public is not satisfied with how these elected representatives are doing their jobs – eg public administration, policy making, moral integrity – these representatives may be voted out at the next election • Communications relevant to advancing a participatory democracy include a wide range of issues that is of “public interest” – eg professional competency of political public figure; personal conduct of an elected representative may impact on his/her moral authority to lead

5. Rationale of Australia’s Free Speech Guarantee • Based on the concept of representative democracy & responsible govt established by the Constitution • s 7 (members of Senate shall be “directly chosen by the people”) • s 24 (member of House of Reps shall be “directly chosen by the people”) • s 128 (mode of altering the Const by referendum) • Hence the implied freedom of political communication in Australia is based on the text and structure of the Constitution (Lange) which guarantees a system of representative democracy

6. The Constitutional Text • Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. • Section 24: The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. • Section 128: The proposed law for the alteration thereof ... shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

7. Australia: ACTV (1992) • Mason CJ – • Indispensable to accountability & responsibility is freedom of comm in relation to “public affairs & political discussion” • By these means, the elected reps are equipped to discharge their role so that they may take account of and respond to the will of the people • Absent such a freedom, “representative govt would fail to achieve its purpose, namely, government by the people through their elected reps” • The efficacy of rep govt depends also on free comm of such matters “between all persons, groups and other bodies in the community” at both Cth & State levels

8. Australia: ACTV (1992) • Gaudron J – • The nature of the federal compact requires the freedom of political discourse to extend to State matters • The freedom involves the free flow of info & ideas bearing on – • Cth, State and Territory govts, govt arrangements & institutions • Matters within the province of the Cth, State or Territory govts, their agencies & institutions • Those persons who are or would be members of their Parls and other institutions of govt & such political parties or organisations that exist to promote their cause

9. Australia:Nationwide News (1992) • Deane & Toohey JJ – • The “actual discharge of the very function of voting in an election or referendum involves communication” … but the doctrine of rep govt under the Const is “not concerned merely with electoral process” • The freedom presupposes an ability of the people to • “communicate info, needs, views, explanations & advice” • “communicate, amongst themselves, info & opinions about matters relevant to the exercise and discharge of governmental powers and functions” • Note – freedom may be limited only to communication on matters relating to Cth (extd to States in Coleman)

10. Australia: Lange (1997) • ISSUE – David Lange, former PM of NZ, sued ABC for defamatory statements made in Four Corners program – ABC raised a constitutional defence based on the implied freedom • HELD – Unanimous – Rejected a constitutional defence to defamation, but common law qualified privilege defence should be developed in line with implied freedom (essentially a fused defence) • the system of [representative] government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised. The ‘varying conditions of society’ … now evoke a broadening of the common law rules of qualified privilege.

11. Australia: The Lange Privilege • A defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, • took proper steps, so far as they were reasonably open, to verify the accuracy of the material • and did not believe the imputation to be untrue. • the defendant is expected to have ‘sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.’

12. Rationale of UK’s Free Speech Guarantee • Art 10 of ECHR incorporated into English law by Human Rights Act 1998 • HL in Reynolds - Freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice. • Lord Nicholls – ‘recalibrate the legal balance between reputation and free speech through altering the scope and strength of defamation law’s defences’

13. UK: Text of Article 10, ECHR • (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. • (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

14. UK: The Reynolds Privilege • Reynolds (HL 2001) – Albert Reynolds claimed damages for defamation against Times Newspapers Ltd concerning publication of article regarding the political crisis in Dublin – • Political information can be broadly defined ... as information, opinion and arguments concerning government and political matters that affect the people of the United Kingdom. • At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions.

15. UK: The Reynolds Privilege • Reynolds (HL 2001) – • It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. • Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever.

16. UK: The Reynolds Privilege • Reynolds (HL 2001) – • Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. • With defamatory imputations of fact ... those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. • In the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a scoop, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials.

17. UK: The Reynolds Privilege • 1) The seriousness of the allegation. • 2) The nature of the information, and the extent to which the subject matter is a matter of public concern. • 3) The source of the information. • 4) The steps taken to verify the information. • 5) The status of the information. • 6) The urgency of the matter. • 7) Whether comment was sought from the plaintiff. • 8) Whether the article contained the gist of the plaintiff's side of the story. • 9) The tone of the article. • 10) The circumstances of the publication, including the timing.

18. UK: The Reynolds Privilege • Despite the potential of the Reynolds privilege to develop wider protection for publishing allegations that are made by others, it has been more regularly employed by the English courts to hold the media to a higher standard of responsible reporting > “responsible journalism” standard

19. Canada’s Free Speech Guarantee • Section 2(b) of the Canadian Charter of Rights and Freedoms: ‘Everyone has the … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. • Can SC - ‘essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.’ • When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.’

20. Canada: Defence of ‘Responsible Communication’ • The Grant privilege: ‘the common law should be modified to recognize a defence of responsible communication on matters of public interest’ • (i) the publication must be on a matter of public interest; • (ii) the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances – the court would consider a non-exhaustive list of 7 factors akin to the Reynolds factors • In Canada, the Supreme Court would consider public interest to cover a broader range of topics than in Australia … ‘The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality’.

21. Singapore • Literal interpretation of Art 14: every citizen of Singapore has the right to freedom of speech and expression • SGCA in Review Publishing (2009) rejected the application of Reynolds privilege to a foreign defendant • In the absence of the Singapore Parliament passing a law that circumscribes the defence of qualified privilege, it is open to the Court of Appeal to develop the defence of qualified privilege under the common law in the direction of the Reynolds privilege

22. Singapore • Democratic • Confucianist • Communitarian

23. Transnational Convergence • Jurisdictions which exhibit features of a representative democracy have adopted a Reynolds-type privilege – “responsible journalism/communication” standard > UK, Aust, Canada, NZ • SGCA in Review Publishing (2009) conceded that ‘the rationale behind the Reynolds privilege … is equally relevant to our citizens because of Art 14(1)(a) of the Singapore Constitution’ … SGCA did not reject the responsible journalism test – or a broader qualified privilege with respect to matters of public interest – as being inapplicable to Singapore citizens in the future.

24. Transnational Convergence • Multi-factorial test allows courts from different jurisdictions to accord different weight to different factors according to their cultural and social contexts • In a communitarian democracy like Singapore, more weight can be given to the reputation of honourable men whose vocation of serving the public is their ‘whole life’ • The Reynolds privilege is focused on ensuring that journalists and other individuals take reasonable steps to check on the accuracy of any allegations that they report, even if these allegations relate to the conduct of political public figures or other matters of public interest pertinent to the electorate making an informed choice.

25. Conclusions • Common features of a representative democracy > electors need information to make an informed choice; elected government has to be accountable • Media >> Electorate; Individuals >> Electorate – Encompasses print, broadcast and electronic media • The Reynolds privilege allows a better flow of such ‘political communication’and strikes a good balance between freedom and responsibility

26. The Reynolds Privilege in a Representative Democracy:A Case for Transnational Convergence Dr David Tan Asst Prof, Faculty of Law