DEFAMATION
DEFENCES (2)
PRIVILEGE and the new public
interest defence in s.4 2013 Act
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WHAT IS PRIVILEGE?
• Comes in a variety of forms
• All are the result of public policy
considerations that recognise that
statements & publications made in certain
circumstances should be IMMUNE from
civil proceedings even when untrue and
damaging.
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ABSOLUTE & QUALIFIED
PRIVILEGE
• ABSOLUTE – strongest form – gives
complete immunity if applicable so no
action for defamation possible UNLESS
the speaker waives immunity (Hamilton v
Al Fayed)
• QUALIFIED –Not as strong but can still
provide immunity if criteria satisfied
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ABSOLUTE PRIVILEGE
• Applies to very narrow categories
• These affect media the most:
• Statements made in or as part of parliamentary
proceedings - only applies to MPs or members
of HL( media only entitled to Qualified privilege
here)
• Statements made in the course of judicial
proceedings
• Fair accurate and contemporaneous reports of
judicial proceedings
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Reply to an Attack/ Right to reply
• Applies to anyone
• This defence is covered by Qualified
Privilege
• If a person has been verbally attacked
they have the right to defend themselves
even if their statements are defamatory
• See Henry v BBC for a recent discussion
on this point
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QUALIFIED PRIVILEGE 1
• Can be defeated by Malice
• Aim of defence is to promote open &
honest communications of a public or
private nature that are in the interest of
society
• Applies to:
• Fair, accurate & honest reports of
parliamentary proceedings ( See Curistan
case [2009])
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QUALIFIED PRIVILEGE 2
• Fair & accurate reports of judicial proceedings
but goes beyond just what happens in court can apply to documents prepared for a criminal
investigation
• Statements made on occasions specified in
Defamation Act 1996 s.15 (Schedule 1) as
amended by 2013 Act
• Statements made where there is a moral, legal
or social duty in communicating the information
- see the Reynolds defence
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QADIR V ASSOCIATED
NEWSPAPERS LTD (ANL)
• Case from 2012 decided in High Court
• Very helpful discussion and guidance
about what not to do(!) when reporting
proceedings whether criminal or civil.
• Various case notes and commentaries
available online
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‘REYNOLDS’ PUBLIC INTEREST
DEFENCE
An important relatively new defence
developed by the HL out of Qualified
Privilege
Developed on a case by case basis.
Slow early development but since the HL
decision in Jameel in 2006 it has been
used successfully on several occasions
Abolished by 2013 Act
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ELEMENTS
• Essential questions to be answered are:
• 1. Does the publication concern a matter
of public interest?
• 2. Were the steps taken to gather, verify &
publish the information responsible and
fair?
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What is responsible journalism?
• ‘responsible journalism is the point at
which a fair balance is held between
freedom of expression on matters of public
concern and the reputations of individuals.
Maintenance of this standard is in the
public interest and in the interests of those
whose reputations are involved’
Lord Nicholls in Bonnick v Morris [2003]
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IMPORTANT CASES TO
REMEMBER No.1
• Lingens v Austria (1986) 8 EHRR 407
• Reynolds v Times Newspapers [2001]AC
127 (the 10 points test)
• GKR Karate v Yorkshire Post Ltd [2001] 2
All ER 931
• Henry v BBC [2005] EWHC 2787 QBD
• Galloway v Telegraph Group [2006]
EWCA Civ 17
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IMPORTANT CASES No.2
• Jameel v Wall Street Journal Europe Sprl [2006]
UKHL 44 (10 points reduced)
• Charman v Orion Publishing Ltd & ors [2007]
EWCA Civ 972 - the ‘Bent Coppers’ Case
• Roberts v Gable [2007] EWCA Civ 721- ‘neutral
reportage’
• Flood v Times Newspapers [2012] UKSC 11According to many SC decision put this defence
‘back on track’. Flood won his claim in respect of
the online material. Damages - £60,000
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The Human Rights Aspect
• The ‘battle’ between Art 10 rights of
defendant and Art 8 rights of Claimant.
• Both Articles given equal weight. This is
acknowledged by courts.
How the 2 articles are balanced by the
courts is a critical question in defamation
law.
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The effect of the defence
• Operates as complete defence even if the
material is untrue – once established the
claimant can do nothing to regain their
reputation.
• Can appear unfair to blameless claimants
• See Campbell-James v Guardian Media
[2005] EWHC 893
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Critics and commentary
• See Jonathan Coad – thinks defence is in
the interests of the media NOT the public.
• Contrast Gavin Millar – questions whether
Art 8 should encompass reputation at all.
• See section of the Defamation Act 2013
on public interest defence– is this what is
required? Will it be flexible enough?
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Public Interest defence in new
Act
• S.1 It is a defence to an action for
defamation for the defendant to show that
• (a) the statement complained of was or
formed part of a statement on a matter of
public interest.
• (b) the defendant reasonably believed that
publishing the statement complained of
was in the public interest
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Continued……..
• The court must have regard to all the
circumstances of the case [the 10 point list
will still be useful here]
• The statement can be on a matter of fact
OR opinion.
• Allowance must be made for editorial
judgement.
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Reportage (Roberts v Gable)
• S.4(3) – If the statement complained of
was, or formed part of, an accurate &
impartial account of a dispute to which the
claimant was a party, the court must in
determining whether it was reasonable for
the defendant to believe that publishing
the statement was in the public interest
disregard any omission of the defendant to
take steps to verify the truth of the
imputation.
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New defences to look out for..
• Defences for Internet Service Providers
who did not post the material complained
of. S.5 does not affect pre-existing
statutory/common law defences.
• Note that in respect of unknown posters of
material this defence is conditional on
compliance with regulations/guidance just
published by Ministry of Justice.
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