Qualified privilege is a defence in English defamation law which protects publishers, where they have communicated defamatory statements, if they can prove that they had a duty to communicate them. It differs from the defence of absolute privilege, in that it is not the occasion which the statement is made in, but the communication of it, which is privileged.[1] Until recently, the defence of qualified privilege was unavailable to the mass media, giving newspapers no defence when a story of large importance turned out to be false, and defamatory.[1] This is in contrast to American law on defamation, where freedom of speech has long protected the media from most libel proceedings. The recent case of Reynolds v Times Newspapers Ltd[2] extended the defence to the mass media, where the report is of sufficient public interest[3], and results from sufficiently neutral and responsible journalism.[4]
Reporting edit
Judicial proceedings edit
Fair and accurate reports of judicial proceedings have long been established to attract qualified privilege.[5] This extends to reports of all courts, preliminary hearings and to ex parte hearings, under the theory that:
".. though the publication of such proceedings may be to the disadvantage of the particular individual concerned .. it is of vast importance to the public that the proceedings of Courts of justice should be universally known."[6]
Parliamentary proceedings edit
It was established in Wason v Walter[7] that reportings of debates and proceedings in Parliament can attract the defense of qualified privilege. Whilst parliamentary proceedings enjoy absolute privilege from defamatory proceedings, reporting of such proceedings must meet several requirements to qualify for protection. The reports must be a fair and accurate representation of the proceedings. Therefore the addition of circumstancial detail and inaccuracies may bring render the report defamatory; Lord Denning's comments in Associated Newspapers Ltd v Dingle [1962] 3 WLR 229:
| “ | If a newspaper seeks to rely on the privilege attaching to a parliamentary paper, it can print an extract from the parliamentary paper and can make any fair comment on it. and it can reasonably expect other newspapers to do the same. But if it adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged.[8] | ” |
Public proceedings and meetings edit
Reportings of public events, enquiries and commissions have been found to attract the defence of qualified privilege, where the occassion is of sufficient public interest.[1] For example, a report into the work of an inspector for charities was found to be privileged,[9] as was reporting the work of General Medical Council's practices.[9]
The Defamation Act 1996 codified numerous provisions for the defence of qualified privilege, including many events which may be freely reported on, without fear of defamation proceedings.
The following proceedings, other than those of legislatures and courts, may be reported on free from explanation or contradiction:
- A fair and accurate report of proceedings in public of a person appointed to hold a public inquiry by a government or legislature anywhere in the world.
- A fair and accurate report of proceedings in public anywhere in the world of an international organisation or an international conference.
- A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
- A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.
- A fair and accurate copy of or extract from matter published by or on the authority of a government or legislature anywhere in the world.
- A fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference.
Duty and interest edit
The defence of qualified privilege is generally dependent on a duty of the communicator, and a reciprocal interest in the receiver, in order to deem a communication privileged.[1] Practically, this has been viewed as a moral or social duty which necessitates the communication.[1] The limits of this protection are well exemplified by the case of Watt v Longsdon[10]. Here, where the director of a company sent defamatory letters (expressing suspicion of Mr Watt floundering with women) to the chairman of the company, these were protected. The sending of them to Mr Watt's wife was not so privileged: there was no duty to impart such information, as was implied between the executives of the company.
The Reynolds defense edit
The case of Reynolds v Times Newspapers Ltd marked a liberalisation in the defence of qualified privilege, and its applicability to the mass media.
To meet the requirements of the Reynolds defence, the defendant must show that they acted responsibly, as a 'reasonable reporter' would. This principe was established in Loutchansky v Times Newspapers Ltd.
Subsequently to the decisions of Reynolds and Loutchansky, .. Jameel v Wall Street Journal Europe
Malice edit
See also edit
References edit
- ^ a b c d e Markesinis, Johnston, Deakin, p. 794 Cite error: The named reference "m1" was defined multiple times with different content (see the help page).
- ^ Reynolds v Times Newspapers Ltd [2001] 2 AC 127
- ^ [2001] 2 AC 127, p. 205
- ^ Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805
- ^ Ryalls v Leader (1866) LR 1 Ex 296
- ^ The King v The Evening News [1925] 2 KB 158
- ^ (1868-69) LR 4 QB 73
- ^ Associated Newspapers Ltd v Dingle [1962] 3 WLR 229 p. 411
- ^ a b Payne, p. 181
- ^ [1930] 1 KB 130
Bibliography edit
- Deakin, Simon; Johnston, Angus; Markesinis, Basil (2007). Markesinis and Deakin's Tort Law. Oxford University Press. ISBN 0199282463.
- Payne, Douglas (1961). "Qualified Privilege". The The Modern Law Review. 24 (1). Blackwell Publishing.