Statutory enforcement of Reynolds is not the answer, say Leigh and Davies

Last week media lawyers suggested to a House of Commons Select Committee that statutory enforcement of the Reynolds' defence could help journalists pursue responsible journalism with less legal risk.

The so-called Reynolds privilege defence, based on the case of Reynolds v Times Newspapers Ltd and Others, 1999, can be used by journalists to defend pieces of journalism in defamation cases, by proving they are in the public interest.

While its original use stipulated 10 points of 'responsible journalism' that must be followed, a subsequent ruling in favour of the Wall Street Journal in the Jameel v Wall Street Journal case in 2006, has allowed for a more relaxed interpretation of the defence.

David Leigh, investigations editor at the Guardian and professor of reporting at City University, who says he frequently uses Reynolds as a point of reference when preparing pieces, does not agree that statutory enforcement will help, however.

"I think since Jameel it has become more flexible and I think it's workable at the moment. Every time we write something and people don't sue, that's a success for Reynolds. I've written lots of stories that I wouldn't have been able to write before," he said.

Journalist and author of Flat Earth News, Nick Davies, is wary of over-exaggerating the usefulness of Reynolds. 

"Reynolds provides a compromised way of telling a story so you can be safe through the libel law, but it doesn't allow you to tell the whole truth," he told Journalism.co.uk.

Davies concern is that by being forced to present the 'other side of the story' in line with the demands of Reynolds the 'truth' of the story is damaged.

But this issue does not worry Leigh as much: "Reynolds only demands you reproduce the essence of what someone is saying. You can present so much evidence for the other side, if that's where you believe the truth lies, that people can make up their own minds."

Both journalists agree that UK libel law needs reform - with or without Reynolds.

"The main problem is the law itself. [Reform of] Conditional Fee Agreements could conceivably help, in that they would allow some people access to the law, but that wouldn't change the fact that the libel law is still very, very wrong in itself," said Davies. 

"The system shouldn't be about paying damages at all, it should be about correcting false publication."

"Smaller serious minded publications have got a problem if they're trying to do a good job. Legal costs have got to come down and you've got to change the burden of proof," added Leigh.

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