⇒ This section will cover the following topics:
⇒ 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
⇒ So MPs, Lords and parliamentary reports can say what they like without being sued for defamation (i.e. they have absolute privilege)
⇒ 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]
⇒ 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
⇒ 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)
⇒ 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
⇒ 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]
⇒ 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:
⇒ 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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⇒ 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
⇒ Sections 4(2) and 4(4) of the Defamation Act 2013 require the court take âall the circumstancesâ 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]: âThe Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concernâ. âIf they are to have the benefit of the privilege journalists must exercise due professional skill and careâ (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:
⇒ There is a variant of the Reynolds defence known as reportage
⇒ The Defamation Act 2013 has now put the defence on a statutory basis (s4(3))
⇒ Malice defeats qualified privilege
⇒ See the case of Horrocks v Lowe [1975]
⇒ The common law âfair commentâ defence has now been codified as the âhonest opinionâ defence. As with the defence of truth, the statutory defence âbroadly 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.â (Defamation Act 2013 Explanatory Notes).
⇒ Opinions â as opposed to assertions of fact â 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.
⇒ s.3 of the defamation act (Honest 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)
⇒ Also see the case of British Chiropractic Association v Singh [2010]
⇒ 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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