Privilege is essentially exemption from the law, and as great as that sounds, unfortunately there are rules to abide by. Absolute privilege (AP) is granted to Members of Parliament whenever they are in session at the House of Commons. This allows MPs to speak freely without any fear of libel action against them from anyone they may slander or defame by doing so. This can be especially juicy as it does not matter if it is malicious. If they really wanted to they could forget politics and have a slagging match in which they call each other Martian-Yeti Gigolos (I hope I didn’t just discriminate against female MPs). Of course, the odds on that happening are pretty slim, yet we will stand ready, just in case.
There seems to be a bone of contention between McNae’s and the Privilege Notes on the website, as McNae‘s claims that under some circumstances journalists are afforded AP. This is contradicted by the course notes. As a compromise I’ll simply write what the book says on the subject, then carry on as if nothing has happened (hopefully I’ll be corrected one way or the other).
Journalists are permitted absolute privilege when reporting court cases or the proceedings of certain types of tribunals. Journalists are only granted absolute privilege if the material they publish is: Fair, Accurate and published contemporaneously (it’s a posh word for quickly). For a report to be fair and accurate it needs:
There seems to be a bone of contention between McNae’s and the Privilege Notes on the website, as McNae‘s claims that under some circumstances journalists are afforded AP. This is contradicted by the course notes. As a compromise I’ll simply write what the book says on the subject, then carry on as if nothing has happened (hopefully I’ll be corrected one way or the other).
Journalists are permitted absolute privilege when reporting court cases or the proceedings of certain types of tribunals. Journalists are only granted absolute privilege if the material they publish is: Fair, Accurate and published contemporaneously (it’s a posh word for quickly). For a report to be fair and accurate it needs:
- A summary of both sides.
- No substantial inaccuracies (in this case, inaccuracies that create a false or misleading impression).
- To be unbiased.
For a report to be contemporaneous means it must be published as soon as possible so that would be the next possible publication. If the report is not published as quickly as possible it may still enjoy qualified privilege if it fits the statutes required under common law.
Qualified privilege (QP) is a defence that can be used in situations where it is considered important that the facts should be freely known to the public. Circumstances where this defence can be used include court cases, council meetings and police statements. The requirements to use qualified privilege differ from absolute privilege in that motives play a key part in the former as there can be no evidence of malicious intent. General requirements for qualified privilege are that the report must be:
Qualified privilege (QP) is a defence that can be used in situations where it is considered important that the facts should be freely known to the public. Circumstances where this defence can be used include court cases, council meetings and police statements. The requirements to use qualified privilege differ from absolute privilege in that motives play a key part in the former as there can be no evidence of malicious intent. General requirements for qualified privilege are that the report must be:
- Fair, accurate, and published without malice.
- Of public concern/be of benefit to the public.
It is important to note that there is no qualified privilege for a report of defamatory statements made after a case or meeting when people involved are asked to expand on statements made during the proceedings.
QP in common law is formed by judges and convention as opposed to statute. Common law QP applies to certain circumstances where potentially defamatory statements are protected for “the common convenience and welfare of society”. One circumstance where a person may make a defamatory statement in a moral, legal, or social duty to another who has a vested interest in receiving it, would be in the case of someone asking for a reference from a past employer, or lecturer. The lecturer would have to tell the truth and as long as it is not malicious, he cannot be sued for libel over the reference.
A highly important and influential case involving Albert Reynolds vs. Sunday Times further defined QP protection outside of a court reporting situation. Reynolds, the then Prime Minister of Ireland was reported by the Sunday Times to have tried to (and lied about) cover up a child abuse scandal in the Catholic church (A similar case has been ongoing for a while involving the Pope when he was still Cardinal Joseph Ratzinger). Reynolds sued for defamation and the newspaper said that while it believed it to be true, there was no evidence. This could have been a very sticky situation, however, on reaching the higher courts, the judges thought the paper had had a duty to publish the allegations. this was due to a relevance to public interest and simply that they weren't unreasonable. Lord Nicholls, the Judge in the appeal stage of the case, decided that the media needed more protection so that they could continue to report stories in the name of the public interest. He set out a list of 10 points that will provide QP if covered in writing such a report. I wont write these out as will no doubt take up a lot of space, however they can be found in the qualified privilege course notes.
QP in common law is formed by judges and convention as opposed to statute. Common law QP applies to certain circumstances where potentially defamatory statements are protected for “the common convenience and welfare of society”. One circumstance where a person may make a defamatory statement in a moral, legal, or social duty to another who has a vested interest in receiving it, would be in the case of someone asking for a reference from a past employer, or lecturer. The lecturer would have to tell the truth and as long as it is not malicious, he cannot be sued for libel over the reference.
A highly important and influential case involving Albert Reynolds vs. Sunday Times further defined QP protection outside of a court reporting situation. Reynolds, the then Prime Minister of Ireland was reported by the Sunday Times to have tried to (and lied about) cover up a child abuse scandal in the Catholic church (A similar case has been ongoing for a while involving the Pope when he was still Cardinal Joseph Ratzinger). Reynolds sued for defamation and the newspaper said that while it believed it to be true, there was no evidence. This could have been a very sticky situation, however, on reaching the higher courts, the judges thought the paper had had a duty to publish the allegations. this was due to a relevance to public interest and simply that they weren't unreasonable. Lord Nicholls, the Judge in the appeal stage of the case, decided that the media needed more protection so that they could continue to report stories in the name of the public interest. He set out a list of 10 points that will provide QP if covered in writing such a report. I wont write these out as will no doubt take up a lot of space, however they can be found in the qualified privilege course notes.
It must be noted that the Reynolds defence is not an automatic protection as long as you make a token gesture for any of the points. An important case involving George Galloway showcased this point. The Daily Telegraph made serious defamatory statements against George Galloway for which there was no defence of justification or fair comment. The Telegraph claimed it had documents found by one of its reporters that suggested Galloway was in the pay of Saddam Hussein. It further claimed that it had a duty to publish the allegations even if they were untrue. The paper lost the case because it failed the 10 points of the Reynolds defence. Apart from a quick call to Galloway, they did not make any real attempt to put the allegations to him and recieve comment from him reagrding the truth of them. The Telegraph were ordered to pay £150,000 in damages as well as around £1.2 million in costs.
If there's anything I've gleaned from this, it's that as long as you are very diligent and careful, without sacrificing haste, you should be well defended in terms of Privilege. That and not to mess with George Galloway. He's a meaner pussycat than Big Brother would have had me believe.
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