Privilege

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Summary

This section will cover the following topics:

  • Absolute Privilege
  • Qualified Privilege
  • Malice
  • Honest opinion
  • Offer to Make Amends

Absolute Privilege

Summary

Absolute privilege is where you can say anything you like about someone and not be sued for defamation: so absolute privilege is a full defence, for the defendant, where they have allegedly been defamatory

i) Statements made in parliament

So MPs, Lords and parliamentary reports can say what they like without being sued for defamation (i.e. they have absolute privilege)

  • Bill of Rights 1688: ‘Article 9 - The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’
  • See the case of Stockdale v Hansard (1840)

The Defamation Act 1996 s13(1) allows an MP to waive the privilege and enable the courts to hear what was said in Parliament - this was introduced following the case of Allason v Haines [1995]

  • So if the claimant (as an MP) wanted to bring an action against anyone else the court used to strike out the proceedings because the defendant would struggle to defend himself (because he would be unable to rely on statements made in Parliament)
  • But now, following the 1996, MPs can bring defamation proceedings as the defendant will be able to adequately defend himself (as he can rely on parliamentary statements

ii) Court Proceedings and Reports

Any statement made in the course of judicial proceedings, including the preparation of litigation (i.e. including witness statements and communications to solicitors, barristers etc.) is subject to absolute privilege → so you can say what you like in court about a witness, the defendant, a barrister (but not a judge as you may be done for contempt of court!)

Fair and accurate contemporaneous reports of court proceedings are also absolutely privileged: see Defamation Act 1996 s.14, as amended by Defamation Act 2013 s.7(1), which extends the privilege to reports of court proceedings in all countries and territories

iii) Communications between Government ministers

Chatterton v Secretary of State for India [1895]: it was held that a letter from the Secretary of State of India to his Parliamentary Under-Secretary providing material for the answer to a parliamentary question was absolutely privileged

It is impossible to say how high in the hierarchy of civil servants a defendant must be before he enjoys this privilege, although it has been doubted that those below the status of minister may claim the privilege (Szalatanay-Stacho v Fink 1946)

Qualified Privilege

Common Law Qualified Privilege

This defence may be pleaded where one person has a legal, social or moral reason for saying what they did to another, who had a corresponding interest in receiving the info, even if unfavourable to the claimant

  • E.g. writing a reference to somebody about an individual, believing it to be true, and without malice, and you say something about their character which may be defamatory, but because you have a good reason for making the statement and person receiving the information has a good reason to receive it then you can rely on qualified privilege as a defence

It is central to the defence that the information is published in good faith. Any malice will defeat the privilege i.e. if you make a statement knowing it to be untrue, or being careless to its truth or falsity, then you cannot rely on qualified privilege

See the cases of Toogood v Spyring (1834) and Adam v Ward [1917]

Statutory Qualified Privilege

In addition to common law qualified privilege, the defence may also arise under statute

Statutory Qualified Privilege has been established by the Defamation Act 1996 (as amended by the Defamation Act 2013) in respect of fair and accurate reports of a number of types of publication, which broadly fit into the category of official or authorised information in the public interest:

  • Proceedings of legislatures outside the UK
  • Government notices, including foreign governments;
  • Fair and accurate reports of press conferences on matters of public interest;
  • Fair and accurate reports of (not the actual documents) company documents, including accounts, annual reports etc.;
  • Court documents;
  • Peer reviewed academic articles

See Defamation Act 1996 s.14 and Schedule 1. Note that this privilege extends to the reporting of the information, not the information itself. A claimant who is defamed in, for example, a company report, could bring a claim against the company, but not against a newspaper that reported the defamation.

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CONTENT

Public Interest Defence

Since Jan 2014 the common law Reynolds defence (the old public interest defence) has been abolished and replaced by the public interest defence through the Defamation act 2013

  • So although the previous law (below) is not binding it does provide guidance to the court as to what parliament’s intention was when it changed the law. See the case facts of Reynolds v Times Newspapers [2001], here

Sections 4(2) and 4(4) of the Defamation Act 2013 require the court take ‘all the circumstances’ into account, and to make appropriate allowance for editorial judgement, when deciding whether or not a publication is in the public interest (and therefore not defamatory). This allows courts to look at the context and circumstances of the statement, rather than encouraging them to work their way through a set of specific questions.

Bonnick v Morris [2002]: “The Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern”. “If they are to have the benefit of the privilege journalists must exercise due professional skill and care” (Lord Nicholls)

See the cases of Jameel v Wall Street Journal Europe (2006) and Galloway v Telegraph Group Ltd [2006]

The statutory public interest defence:

  • So s.4 Defamation Act 2013 was introduced to replace Reynolds defence
  • S.4 says that “it is a defence to an action for defamation for the defendant to show that”:
    • "(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
    • (b) the defendant reasonably believed that publishing the statement complained of was in the public interest."
    • S.4(2) And the court “must have regard to all the circumstances of the case"
  • It remains to be seen how this defence will be applied by courts, but it is likely it will develop the existing Reynolds defence
  • Although s.4 of the Defamation Act 2013 does not explicitly state that the defence is defeated by malice (unlike s.6, where the statutory protection afforded to academic articles is expressly defeated by malice), it is submitted that malice would defeat the public interest defence → see notes on malice below

Reportage

There is a variant of the Reynolds defence known as reportage

  • Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001]: the court observed that neutral reporting of the fact that some allegations have been made against someone “may be regarded as a form of responsible journalism in the public interest”, and therefore not defamatory

The Defamation Act 2013 has now put the defence on a statutory basis (s4(3))

  • s4(3): If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
  • E.g. if the public interest lies in the fact that Trump and Theresa May are having a fight then the publisher making the statement doesn’t need to check the truth of the allegation

Malice

Summary

Malice defeats qualified privilege

  • In both its common law and statutory forms, the defence of qualified privilege is defeated by proof that the statement was made with malice
  • Malice is not, however, to be equated with hostility or ill-will; a lack of honest belief in the truth of what is being said will suffice, or the use of the privileged occasion for any improper purpose, including – but is not included to – the intention to cause the claimant’s injury

See the case of Horrocks v Lowe [1975]

Honest Opinion

Summary

The common law ‘fair comment’ defence has now been codified as the ‘honest opinion’ defence. As with the defence of truth, the statutory defence “broadly reflects the current law while simplifying and clarifying certain elements, but does not include the previous requirement for the opinion to be on a matter of public interest.” (Defamation Act 2013 Explanatory Notes).

Opinions – as opposed to assertions of fact – are not capable of being defamatory. If they were, then criticism and commentary on matters of opinion would be impossible.

The common law defence required that the opinion was on a matter of public interest. However, the public interest, in this context, was much more broadly interpreted than in other areas of law, such as in privacy. The requirement no longer exists and a commentator may express an opinion on a matter without defaming the subject whether or not the matter is in the public interest.

There is no hard and fast line between opinion and fact. Each statement must be examined on its merits. For example, to say that someone is dishonest may be taken as a fact; but when coupled with a statement of why you think they are dishonest, it becomes a comment.

  • So you can be as rude as you like when passing opinion on people as long as it is an opinion and not a statement of fact: Christie v Robertson (1889)

s.3 of the defamation act (Honest opinion):

  • (1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
  • (2) The first condition is that the statement complained of was a statement of opinion.
  • (3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion (i.e. you have to give a general indication of the facts you are commenting on)
  • (4) The third condition is that an honest person could have held the opinion on the basis of —
    • (a) any fact which existed at the time the statement complained of was published;
    • (b) anything asserted to be a fact in a privileged statement published before the statement complained of.
  • (5) The defence is defeated if the claimant shows that the defendant did not hold the opinion

So the opinion must be based on facts, and those facts must have existed when the opinion/comment was held (so if you say someone is dishonest, and later get prosecuted for a dishonest offence, you cannot rely on the later offence to support your opinion)

  • So to say someone is dishonest without explaining why that is capable of being defamatory as that is a fact not an opinion
  • To say someone stole from the church charity box and therefore think is a crook that is a statement of fact coupled with a comment on that fact and so long as the first statement is true or privileged the comment is protected and not capable of being defamatory

Also see the case of British Chiropractic Association v Singh [2010]

Offer to make amends

Summary

The Defamation Act 1996 s.2 provides that, if a written offer to make amends, in the form of a correction, apology and payment of compensation and costs, is accepted by the claimant the claim is settled

A failure to accept an offer to make amends may be pleaded as a defence, or in mitigation of damages.

See the case of Nail v Jones and Harper Collins Publications [2004]

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