Media law - Qualified privilege

Qualified privilege is an important defence for the publication of defamatory statements. This defence can be used in court reporting as an exemption from libel when repeating, publishing and/or broadcasting defamatory remarks. This privilege requires immediate publication which is fast, accurate and fair with no errors or evidence of malice in order for qualified privilege to apply.
Schedule 1 to the Defamation Act 1996 sets out in Part I a list of statements having qualified privilege 'without explanation or contradiction'
The following is Schedule 1 of the 1996 Defamation Act

Statements having qualified privilege without explanation or contradiction

1. A fair and accurate report of proceedings in public of a legislature anywhere in the world.
2. A fair and accurate report of proceedings in public before a court anywhere in the world.
3. 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.
4. A fair and accurate report of proceedings in public anywhere in the world of an international organisation or an international conference.
5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
6. 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.
7. 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.
8. A fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference. 

Part II lists statements having qualified privilege but 'subject to explanation or contradiction.'  This means that, if required to do so by anyone who is defamed by a report protected by Part II, an editor who has published that report must publish a reasonable letter or statement by way of explanation or contradiction for the qualified privilege to continue to apply to the report.
Failure to publish this statement would destroy the defence of qualified privilege for the publication.



Privilege at common law
Qualified privilege at common law applies in certain circumstances where the law protects defamatory statements that are untrue, for the convenience and welfare of society. This means for the public interest. 
In the case of Toogood v Spyring (1834) 1 CM&R 181, 193, the judge said;

"The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." 

Qualified privilege at common law occurs when a person makes a defamatory statement in the performance of a legal, moral or social duty to a person who has a corresponding duty or interest in receiving it.

An example of such a circumstance would be to suppose someone is seeking a job. The potential employer writes to the former employer to ask for a reference. The former employer has the duty to tell the truth even if that truth were defamatory however, the former employer cannot be sued for libel for what is said, even if the facts are wrong, provided the employer is not motivated by malice.

The Albert Reynolds vs. Sunday Times case is important to be aware of in relation to privilege at common law. In this case, the Sunday Times published that Irish Prime Minister, Albert Reynolds, lied to the Irish Parliament in order to cover up a child abuse scandal in the Catholic Church. The paper said they believed the allegations were true but they had no witnesses and no forensic or documentary evidence to show when Mr Reynolds asked for proof.

However, the judges at the higher courts thought the Sunday Times has not only a right but a duty to publish the allegations since they seemed to be reasonable and it was very much in the public interest that they be discussed as Albert Reynolds clearly was a public figure.

Lord Nicholls, the judge in the appeal stage of Albert Reynolds vs. Sunday Times, seemed to further define qualified privilege defence against defamation, so long as the reporter was working without malice, had taken reasonable steps (not reckless) and so long as it was a matter of public interest then this qualified privilege protection applied.

Lord Nicholls 10 Point Test of responsible journalism is important to know as it clearly identifies a journalist's degree of legal protection as shown below.

1. The seriousness of the allegation

The more serious the allegation, the more protection will be applied. Allegations which are merely embarrassing or purely private matters are not likely to have protection.

2. The nature of the information

The extent to which the publication is a matter of public interest or concern depends whether it would be protected. Matters which are of public concern and would benefit the public's interest would be protected.

3. The source of the information

The more authoritative the source, the more you are entitled to report their allegations, even if those allegations cannot be proved or even if they turn out to be incorrect.

Chequebook journalism (where people are paid to make allegations) would have less protection than allegations made by a responsible person with a reputation for honesty.

4. The steps taken to verify the information

It's crucial to try and put the allegations to the person being accused in order to get their side of the story. You must either get to the person to make the allegation, or show e-mails and phone calls as evidence you were determined to get their side of the story.

5. The status of the information

You need to be certain that you are not making an old allegation which has previously been denied. If the allegation had been previously dismissed by 'an investigation which commands respect' then it would have no protection.

6. The urgency of the matter

If the matter is urgent then the other checks in the code might be less stringent and might still have protection.

7. Whether comment was sought from the claimant

As a practical point it is always wise to get the other side of the story and have them point out how or why allegations might be untrue but the judge did say that putting allegations to the claimant was not necessary in every single case, if the case for protection on other counts was strong enough.

8. Whether the article contained the gist of the claimant's side of the story

Clearly self explanatory and mentioned in points 4 and 7.

9. The tone of the article

It is always important to attribute the allegations to a named source if possible. If not, there must a genuine and obvious reason for this.

10. The circumstances of the publication including the timing
The allegations should be brought to the public interest as soon as possible.