Wednesday, March 14, 2007


Tuesday 13 March 2007

We continued with our look at defences to the tort of defamation.

ABSOLUTE PRIVILEGE. The best defence of all, and as a result the most limited. Available to:

a member of either House of Parliament during the course of Parliamentary proceedings. The privilege extends to reports, papers and proceedings authorised to be published by Parliament, i.e. Hansard.
Any statement made in the course of judicial proceedings by any party to the proceedings.
Fair, accurate and contemporaneous reports of public judicial proceedings in the United Kingdom are absolutely privileged (s3 LIBEL AMENDMENT ACT 1888).
Communications between officers of state in the course of their official duty are absolutely privileged.
Communications between solicitor and client in relation to judicial proceedings are absolutely privileged.

QUALIFIED PRIVILEGE. The only real difference between this and absolute privilege is that the presence of malice will destroy this defence.

Fair and accurate reports of:

Parliamentary proceedings
Public judicial proceedings not reported contemporaneously

both attract qualified privilege.

A statement made in the performance of a duty may attract qualified privilege. The person making the statement must have a legal or moral duty to make it and the recipient must have a corresponding duty to receive it. Whether there is such a duty is a question for the judge. It covers things such as a reference or a staff appraisal.

References may attract qualified privilege and so will statements made between employer and secretary - SPRING v GUARDIAN ASSURANCE [1994]: TSB v HARRIS [2000].

REYNOLDS v TIMES NEWSPAPERS [2001] (HL). The claimant in this case was the ex-Prime Minister of Ireland, who had resigned in the midst of a political crisis in 1994. The defendants were a newspaper, its editor, and various of its journalists. The newspaper had run an article in which it was alleged that Mr Reynolds had concealed certain facts about his colleague Harold Whelehan. This concealment, it was alleged, was to assist Mr Whelehan in his bid to become President of the High Court. It was suggested that, had these facts not been concealed, Mr Whelehan's appointment would have been rendered unconscionable.

To cut a long story short, when Mr Reynolds brought an action in defamation, the defendants were unable to prove the truth of these allegations to the satisfaction of a jury. The defendants were unable to rely on the defence of `fair comment', since the defamatory remarks were of a factual nature, not merely opinions or value judgements. The jury, however, while accepting that the allegations were unproven, declined to award Mr Reynolds even a penny in damages. As the Times had already made a payment into court, Mr Reynolds was ordered to pay their costs from the data of paying-in. The unfortunate judge in this case had the dubious distinction of being accused of doing such a poor job that his performance was the subject of appeals by both the losing party and the successful party. Mr Reynolds appealed on the basis, among other things, that the judge's summing up failed to make the strength of his case clear to the jury; the Times appealed on the basis that it should have been awarded all its costs. The Court of Appeal held, with reluctance, that the conduct of the trial was such as to deny Mr Reynolds a fair hearing, and ordered a retrial. The Times sought permission to use the defence of Qualified Privilege in the retrial, which the Court of Appeal denied, but allowed an appeal on that matter to the House of Lords.

So the hearing in the House of Lords was, on the whole, not concerned with determining the truth of the Times's allegations, or of deciding what costs should be ordered against whom, it was concerned with the scope of the defence of qualified privilege. The established test for qualified privilege is whether the defendant had a duty to publish the material, and the recipient an interest in receiving it, taking into account all the circumstances of the publication. Although this is phrased very broadly, in fact the circumstances in which qualified privilege applies to publication to the public at large have always been very limited. It certainly applies, for example, to the reporting of many matters that themselves attract privilege, such as Parliamentary debates and judicial decisions, but it is hard to find many other examples of its applicability. One of the arguments raised by the defendants in this case was that the traditional common-law view of qualified privilege was too narrow, and therefore was in conflict with the provisions of Article 10 of the European Convention On Human Rights. On the whole, this argument did not find favour with the House; in the judgements of the ECHR that were cited by the defence, it was clear what had been at issue was not the liability for inaccurate factual statements, but rather liability for expressions of opinion. Since the defendant had already conceded that it could not rely on the `fair comment' defence, which was relevant to expressions of opinion, the ECHR judgements were not of any great help. The question therefore fell to be decided under ordinary common-law principles of qualified privilege, and the relevant question was whether political reporting, done in good faith and in the public interest, is something which in general attracts qualified privilege. By a bare majority, the House decided that it did not.

The defence is defeated by malice, the presence of some improper motive or misuse of the privileged occasion or lack of belief in the truth of the statement. Actual spite or ill will is not necessary although it will often be present. The question of malice is for the jury.

The malice of one person does not infect the privilege of another, for example where a councillor at a local authority meeting makes a defamatory and malicious statement and this is reported by a newspaper, the councillor loses his privilege but the newspaper does not.

FAIR COMMENT. Probably the most important defence for a newspaper. The voicing of an honest opinion; a plea that the matter complained of is comment made in good faith & without malice on a matter of public interest.

A good test would include: “Could a fair-minded person (even a biased one) honestly express that opinion having regard to the facts?”

To use the defence it is necessary to show:

The statement is based on true/privileged facts
On a matter of interest to the public
The opinion is honestly held
And made without malice.

CORNWELL v MYSKOW [1987]: when reviewing a musical starring Charlotte Cornwell, the critic Nina Myskow stated: “She can’t sing, her bum’s too big, and she has the sort of stage presence that blocks lavatories.” The defence of fair comment was used, but failed as there had been previous bad feelings between the two, and the use of the particular words was seen as being malicious.

MALCOLM & DE FREITAS v WISDEN [1996]: the famous cricketer’s bible stated : “English players of overseas origin lack real commitment to the national side, being solely motivated by personal advancement. At that time the number of overseas players were only a handful. These two sued & won.

REMEDIES. These include:

damages, both general and exemplary
injunction. This should not be granted if the defendant intends to plead justification as a defence. It is known as the rule of ‘prior restraint’.

The limitation period is one year (s5). Legal aid is not available for a defamation action. There have been one or two actions based on conditional fee arrangements, but the court tends to frown upon them.

A person who would otherwise be protected by Parliamentary privilege may waive that protection (s13). This change in the law was introduced, partly, to assist two Conservative MPs in their defamation actions against newspapers, namely Jonathan Aitken and Neil Hamilton. This was not a popular move.

See the CD I gave you for an explanation of defamation and the internet, highlighting the vast differences between the UK and US approach.
I then showed a BBC training video for journalists concerned with the law in this area.

We will begin with the tort of MALICIOUS FALSEHOOD next week.

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