THE LIBEL DEFENCE OF PRIVILEGE

Originally published in October 28th 2013 for my MA Journalism on Journalism Now.

THE LIBEL DEFENCE OF PRIVILEGE

Continuing on the theme of defamation, journalists and media organisations have several legal defences to libel suits. These can be used in combination (see honest comment) and include:

Justification – truth; relating to factual statements, the defence requires that the material considered defamatory by the litigant be proven true ‘on the balance of probabilities’. Whilst a defendant may not be able to prove so, they may still be able to defend against the claim if they can show it was honest comment or protected by privilege
Honest comment; relating to opinion, the defence’s main requirements include that the comment be the honestly held opinion of an individual based on provably true facts/privileged material with some explicit or implicit reference to their basis, if they are not significantly in the public domain. These non-malicious comments must be in the public interest and not be recognisable as a factual allegation.
Accord and satisfaction; refers to a media organisation’s ability to stop a libel case on basis that the matter has already been resolved e.g. by a claimant’s acceptance of a prior published correction and apology (which has been mutually agreed). A media organisation has a stronger case if it can produce a signed paper, known as a waiver (see footnote for example). The relevant negotiation concept of ‘Without prejudice’ is explained on http://uk.practicallaw.com/2-107-7511
Offer of amends (OOA); often relates to unintentional defamation. As a libel defence, an OOA requires a defendant to make a written, binding offer to make a suitable correction which is published in a reasonable manner. An OOA also requires the defendant to apologise and pay the claimant suitable compensation and costs. Cases which tested this financially judicious and less onerous defence (relative to the courts) are shown on http://www.lawgazette.co.uk/49454.article
Privilege; a statutory and common law recognition of the need for the reporting of comments in the public interest, regardless of if they are or transpire to be defamatory and/or untrue. There are two types of privilege; absolute and qualified.
Absolute privilege – this is a complete bar to a libel action which cannot be defeated by proof of malicious intent.

The following situations are covered by absolute privilege and enable potentially defamatory, yet legally protected, statements to be made in them. Importantly this does not mean that a journalist’s report of the comments has the same protection so, for example, a journalist’s reporting of a parliamentary publication only attracts qualified privilege (publication motive required).

Lawyer-client communications
Officers of state communications
Statements in either House of Parliament and Select Committee proceedings
Hansard; the official, edited verbatim report of proceedings of both the House of Commons and the House of Lords.
White Papers
Statements or complaints of criminal behaviour made to the police
However, in legal recognition of journalism’s perceived or actual role in the transparency of justice, statements made in public court proceedings that are reported fairly, accurately and contemporaneously are protected by absolute privilege. Fair and accurate will a report be if it, devoid of substantial inaccuracies, presents a balanced summary of each party’s case with attributed allegations. Contemporaneous means ‘as soon as practicable’ e.g. the report will be in the newspaper or magazine’s next issue, post court proceedings.

Knowledge is power

The Mark Duggan case highlighted an intriguing aspect of absolute privilege. An understanding of the legal framework in which journalists work regarding defamation could enable one to deduce that in Tom Parmenter’s report for SKY News ( http://news.sky.com/story/1154820/mark-duggan-inquest-marksman-gives-evidence ) the member of the public gallery who shouted the potentially defamatory ‘liar’ at the police officer was probably a witness. Privilege protects the word’s inclusion given the speaker. Had a gallery member who had not been involved in the proceedings uttered said word, its reporting could be open to a libel suit, given the lack of absolute privilege.

The Defamation Act 2013 and absolute privilege

Section 7 of the 2013 Act will extend the defence of absolute privilege to cover a fair and accurate report, published contemporaneously, of the proceedings heard in public of any court established under the law of a country or territory anywhere in the world, or the public proceedings of any international court established by the Security Council of the United Nations or by an international agreement. This will extend existing law, which currently restricts absolute privilege for court reporting to coverage of the UK’s courts and certain international courts and tribunals.

Qualified privilege –this is libel defence for journalists and media organisations who wish to publish facts they feel should be known to the public. The Defamation Act 1996 conferred qualified privilege on these situations:

Debates held in public at any legislature in the world
Court proceedings held anywhere in the world (enables non-contemporaneous reporting and use reference to antecedents)
EU held public meetings and (usually) press conferences. However privilege does not exist outside main proceedings so journalists should be very careful with reporting comments made by people who wish to speak to them outside a press conference on the conference’s topic.
Publicly held UK council meetings, their committees and sub-committees
Material such as Hansard or official reports published by or on the authority of a government or legislature
Statements issued for the public by government departments, councils, the police and other EU governmental agencies
The Defamation Act 2013 confers qualified privilege on:

a fair and accurate report of the proceedings of a public meeting held anywhere in the world (extension from EU)
a fair and accurate report of a press conference held anywhere in the world for the discussion of a matter of public interest
a fair and accurate copy of, extract from or summary of a notice or other matter issued for the information of the public by or on behalf of a legislature or government anywhere in the world, or by an authority anywhere in the world performing governmental functions (including police functions)
a fair and accurate copy of, extract from or summary of a document made available by a court anywhere in the world, or by a judge or officer of such a court.
a fair and accurate report of the findings of certain types of association formed anywhere in the world exercising powers to investigate or discipline members
All of the above have qualified privilege without explanation or contradiction as set out in part 1 of the 1996 Act. Part 2 contains a list of statements that are privileged but subject to explanation or contradiction. The 2013 Act adds ‘a fair and accurate report of proceedings of a scientific or academic conference held anywhere in the world, or a fair and accurate copy of, extract from or summary of matter published by such a conference’. For example a media organisation wishing to use the qualified privilege on reports of this nature must, if defaming anyone, publish a reasonable and suitable (same/analogous manner) letter or statement that serves to explain or contradict said defamatory statements.

The defence requirements of qualified privilege are that reports are fair, accurate, devoid of malice and in the public interest. Malice may consist in either awareness of or recklessness as to the untruth of the statement, a dominant improper motive in making a statement believed to be true or misuse on the occasion for which privilege exists. For a case centring on malice see http://www.5rb.com/case/Blackwell-v-Bates–Ors

Replies to attacks

As the Ken Bates’ case indicates there is qualified privilege at common law for a defamatory statement made by a person in reply to an attack upon his/her character or conduct. There would be no privilege for any response wider than necessary to meet the specific allegations which prompted the reply. A media organisation publishing – for example, in a quote or a letter – a person’s lawful response to an attack upon by another on his/her character or conduct would share in the privilege.

From whose mouth?

The Independent Police Complaints Commission’s (http://www.ipcc.gov.uk/ ) report into ‘Plebgate’ was an example of the media’s use of qualified privilege and shows how the defence refers to the legal standing of the circumstances in which comments are made. The IPCC is an official body delivered through statute so reports on its publications can be protected by this defence.

Hunting in packs

A journalist can be emboldened by another’s use of a word such as ‘liar’, as I discussed last week with Peter Oborne on Question Time (http://www.journalism-now.co.uk/defamation-libel/ ). It could be argued that Peter felt confident enough to use this potentially defamatory word due to its prior use in the media. Professional and responsible journalism would usually entail a journalist having checked its usage with a senior colleague (e.g. editor) or the organisation’s lawyer.

Qualified Privilege examples:

An interesting example that highlights the potential use of this defence by The BBC and Oxford Mail. Also references Offer of Amends – http://www.pressgazette.co.uk/police-blunder-sees-oxford-mail-and-bbc-identify-wrong-man-rapist
Henry v BBC West 2005. The BBC successfully used defence of justification after use of defence of Qualified Privilege failed – http://www.bbc.co.uk/pressoffice/pressreleases/stories/2006/03_march/09/judgement.shtml
Loutchansky v Times Newspapers. Pertinent to discussion of defamation in the Internet era given a readers’ ability to continue to view defamatory comments http://www.out-law.com/page-8703
Reynolds privilege –http://www.5rb.com/case/Galloway-v-Telegraph-Group-Ltd-(CA)
Practical advice to test whether your story has a defence (courtesy of McNae’s Essential Law for Journalists)

Have you done as much research as necessary?
Are there any questions you have not answered, or have not asked, which might throw a new light on a story?
Are your sources reliable? Do they have motives for giving you the story which ought to make you question the accuracy of what they are saying?
Have you put any allegations to the person in question? Failing to do so is almost invariably asking for trouble.
Is the story as clearly written as it should be?
Have you checked all the facts for yourself?
If your article is comment, or if it contains comment, is it clear that it is comment?
Have you kept your notes, research material, recordings of interviews in good order, together, and properly filed for easy access in case problems arise? Make sure you keep the material for as long as necessary.
Further reading:

http://www.theguardian.com/law/2013/oct/10/football-libel-case-parliamentary-privilege-triesman testing of parliamentary privilege

http://www.5rb.com/case/Spiller–Anor-v-Joseph–Ors case in which fair comment defence was renamed as honest comment

http://www.legislation.gov.uk/ukpga/2013/26/section/7 Defamation Act 2013 updates to 1996 Act

http://www.5rb.com/case/Reynolds-v-Times-Newspapers-Ltd The Reynolds case

Suggested newspaper waiver “I confirm that the publication of an apology in the terms annexed in a position of reasonable prominence in the next available issue of the [name of paper] will be accepted in full and final satisfaction of any claim I may have in respect of the article headed [give headline] published in the issue of your newspaper for [date].”

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