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If you thought letters to the editor would never be protected by privilege – think again.

Judicial comments in a recent libel case suggest there will be circumstances in which a publisher, editor and occasionally even a letter-writer could successfully claim public interest, or Reynolds qualified privilege, after publication of a defamatory reader’s letter.

In Malik v Newspost Ltd, the judge Mr Justice Eady made interesting observations about the potential scope of privilege.

The case concerned a reader’s letter published in the Dewsbury Press and a follow-up interview. These publications alleged that the democratic process had been undermined in local elections in the Dewsbury South ward, held in May 2006.

Both the letter and the subsequent article, which was based on an interview with the letter-writer, were alleged to be defamatory of the claimant, Mr Shahid Malik, the Labour MP for Dewsbury and Mirfield.

Mr Malik, who denies the allegations, sued the letter’s author, the newspaper’s publisher and the editor. The jury failed to reach a verdict and a re-trial was reportedly expected, in which the defence may seek to rely on justification.

What are of particular interest, however, are the judge’s remarks on privilege. Although he decided that the letter and follow-up article were not, on the particular facts, privileged, he indicated there was no reason in principle why the media should not benefit from privilege in a similar case, if certain criteria were met.

He said: “It might be thought, as a matter of first impression, that Reynolds privilege would have no application to either of the publications. Yet, it is necessary to have regard to the broader issues of public policy upon which are founded not only the defence now associated with the Reynolds case, but also the closely related public interest privilege…”

Referring to the letter and follow-up, he added: “Sometimes it may be in the public interest for allegations to be generally disseminated through the media by means which cannot be labelled as investigative (or indeed any other form of) journalism.”

Outlining the nature of the privilege that might arise, he said that if a publication “can be shown to be in the public interest (irrespective of truth or falsity), then a social or moral duty to impart the information can be assumed.”

Such a supportive statement about public interest publication will no doubt be reassuring to the media. However, the judge said there also had to be “safeguards” for fairness and the protection of reputation.

He said the letter’s author, in this instance, could not successfully claim privilege because the letter made factual assertions directly to readers and had not merely reported allegations neutrally.

As to the newspaper’s publisher and editor, he said: “…there would no doubt be circumstances in which such allegations could be reported under the cloak of privilege, provided certain steps had first been taken; for example, obtaining a response from Mr Malik in advance of publication or carrying out other corroborative checks. Moreover, if both sides of the controversy were fairly and disinterestedly reported, there might be a reportage defence.”

It shows that publications arising from readers’ letters may in certain circumstances be privileged, if handled appropriately, even though at first glance they seem a far cry from the investigative journalism usually associated with public interest or Reynolds privilege.

In practice, the judge’s comments may be of little consequence. Editors would still be wise to hold contentious readers’ letters in reserve, and simply use them as the basis for balanced reports including both sides of the story – and even then, privilege is never guaranteed.

But the judge’s generous view that the media may have “a moral duty” – and privilege – to publish certain types of information, whether or not the publication looks like traditional investigative journalism, is noteworthy.

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To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]

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