Privilege - A Defence Against Popes and Pussycats

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:

• 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:

• 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.

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.

The Simple Sword of Truth, and the Trusty Barge Pole of Cowardice

Defamation is perhaps one of the most worrying things a journalist can confront. Usually encountered while court reporting (but by no means limited to), a claim of defamation means an accuser thinks that something published concerning them has damaged their reputation and lowered right-minded peoples opinion of them. In many cases, a defamatory statement will expose the subject to hatred, ridicule and contempt from their peers, often resulting in Libel action. You can get an idea of how journalists view being presented with a defamation charge, in that there is actually a name for the feeling you get when considering even a genuine, unbiased story on a person or group that is particularly litigious: The 'Chilling Effect'. For example, the Church of Scientology has filed dozens upon dozens (perhaps even hundreds) of lawsuits, funded by their enormous wealth and influence. Here is a policy letter written by L. Ron Hubbard (the founder of the Church of Scientology), distributed in early 1966:

This is correct procedure:

1. Spot who is attacking us.
2. Start investigating them promptly for FELONIES or worse using own professionals, not outside agencies.
3. Double curve our reply by saying we welcome an investigation of them.
4. Start feeding lurid, blood sex crime actual evidence on the attackers to the press.

Don't ever tamely submit to an investigation of us. Make it rough, rough on attackers all the way.

Against such a code of conduct, I don't blame people for getting the willies.

Fear not however, we aren't doomed to the dole queue just yet. Journalists are awarded certain defences, provided that they follow a certain code of conduct. The first of these defences is Justification, or to put it simply, Truth. If the reporter can present evidence showing that the published matter in question is in fact true, then this provides complete protection against any libel action. A very famous example of justification at work was that of Conservative cabinet minister Jonathon Aitken who filed Libel actions against The Guardian for reporting that his bill for the Ritz hotel in Paris was paid for by an Arab associate, in direct breach of ministerial guidelines. He even resigned from his post stating that he would:
 "Fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play". 
After four years of investigations and court trials, evidence was found that proved that Aitken had been lying all along, and that he had been willing to have his daughter lie under oath to protect him, saying that it was his wife Lolicia Aitken who had paid for his hotel stay, when it was in fact found that she had been in Switzerland at the time and it would have been impossible for her to have done so. Aitken was faced with legal costs of £2 million and an 18 month prison sentence (of which he served 7) for committing perjury and perverting the course of justice.

While the Aitken case is a fantastic example of justification at its best, they aren't all quite as interesting. Another defence afforded to journalists is Privilege. This gives protection to publish potentially damaging material in accordance with the principle that justice must be seen to be done. As journalist are the eyes and ears of the public, they are allowed to report things that could be defamatory, as long as it is considered in the public interest to do so. Reports may only hold privilege if they are fair and accurate, otherwise you may well find out just how deep the rabbit-hole goes.

The last main defence of defamation is known as Fair Comment. This is essentially exactly what it says on the tin. Such a comment may be published as long as it is: the honestly held opinion of the writer; recognisable as opinion (not presented as fact); based on provably true facts; linked to theprovably true facts, in the same publishing (unless so well known as to make it unnecessary); on a subject that is a matter of public interest. On the plus side it doesn't have to be 'fair' (I know, the name confused me too), a judge/ jury does not have to agree with it to rule it fair comment, as long as it is honest opinion - in other words, not malicious - then we're home free.

The 'Bane and Antidote' defense was also discussed, which is where One would write something negative, followed by something appealing to kiss it all better. However, as far as I can make out, this is very dodgy ground to be used as a defence for defamation, so I would personally not touch it with the preverbial barge pole, could it be avoided.