These
are rough lecture notes and do not constitute legal advice. The lecture
must be taken in conjunction with the directed reading and your own
research and verification. Last updated in October 2009.
(1) In reporting court, parliament you have a QP defence
automatically when repeat/publish/broadcast defamatory remarks
(2) QP requires immediate publication, no errors, no
malice ('fast, accurate, fair') Malice can be lack of balance, so add "he
denies the charges" and "the case continues".
(3) You never have AP as a journalist, though in practice
if your report is free from error, and if it published immediately then
the QP confers a similar degree of protection.
(4) You have QP at a range of other public events (eg
local government meetings, pressure group meetings, AGMs of companies
- section 12 of the 1996 act + Clegg + Human Rights Act, section 10)
so long as you allow the defamed person to deny it in the same report
- "subject to contradiction". (VITAL IMPORTANCE OF BALANCE)
(5) If you have ALL 10 POINTS of Reynolds Test, plus
THE PUBLIC INTEREST - then you MAY have QP in making defamatory allegations
outright, without quoting somebody protected by AP.
(A) STATUTES:
STATEMENTS
HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION (as
set out in schedule I the 1996 Defamation Act)
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.
SCHEDULE
II - STATEMENTS HAVING QUALIFIED PRIVILEGE IF THE OTHER SIDE OF THE
STORY IS GIVEN ALONG SIDE THE DEFAMATORY ALLEGATION (as
set out in schedule II of 1996 Defamation Act) ie "Statements
privileged subject to explanation or contradiction".
9. - (1) A fair and accurate copy of or extract
from a notice or other matter issued for the information of the public
by or on behalf of-
(a) a legislature in any member State or the European Parliament;
(b) the government of any member State, or any authority performing governmental
functions in any member State or part of a member State, or the European
Commission;
(c) an international organisation or international conference.
(2) In this paragraph "governmental functions" includes police
functions.
10. A fair and accurate copy of or extract from
a document made available by a court in any member State or the
European Court of Justice (or any court attached to that court),
or by a judge or officer of any such court.
11. - (1) A fair and accurate report of proceedings
at any public meeting or sitting in the United Kingdom of-
(a) a local authority or local authority committee;
(b) a justice or justices of the peace acting otherwise than as a court
exercising judicial authority;
(c) a commission, tribunal, committee or person appointed for the purposes
of any inquiry by any statutory provision, by Her Majesty or by a Minister
of the Crown or a Northern Ireland Department;
(d) a person appointed by a local authority to hold a local inquiry in
pursuance of any statutory provision;
(e) any other tribunal, board, committee or body constituted by or under,
and exercising functions under, any statutory provision.
(all
of these above are defined in the Act)
12. - (1) A fair and accurate report of proceedings
at any public meeting held in a member State.
(2) In this paragraph a "public meeting" means a meeting bona
fide and lawfully held for a lawful purpose and for the furtherance or
discussion of a matter of public concern, whether admission to the meeting
is general or restricted.
13. - (1) A fair and accurate report of proceedings
at a general meeting of a UK public company.
(2) A fair and accurate copy of or extract from any document circulated
to members of a UK public company-
(a) by or with the authority of the board of directors of the company,
(b) by the auditors of the company, or
(c) by any member of the company in pursuance of a right conferred by
any statutory provision.
(3) A fair and accurate copy of or extract from any document circulated
to members of a UK public company which relates to the appointment,
resignation, retirement or dismissal of directors of the company.
(5) A fair and accurate report of proceedings at any corresponding meeting
of, or copy of or extract from any corresponding document circulated
to members of, a public company formed under the law of any of the Channel
Islands or the Isle of Man or of another member State.
14. A fair and accurate report of any finding
or decision of any of the following descriptions of association,
formed in the United Kingdom or another member State, or of any
committee or governing body of such an association-
(a) an association formed for the purpose of promoting or encouraging
the exercise of or interest in any art, science, religion or learning,
and empowered by its constitution to exercise control over or adjudicate
on matters of interest or concern to the association, or the actions
or conduct of any person subject to such control or adjudication;
(b)
an association formed for the purpose of promoting or safeguarding
the interests of any trade, business, industry or profession, or of
the persons carrying on or engaged in any trade, business, industry
or profession, and empowered by its constitution to exercise control
over or adjudicate upon matters connected with that trade, business,
industry or profession, or the actions or conduct of those persons;
(c)
an association formed for the purpose of promoting or safeguarding
the interests of a game, sport or pastime to the playing or exercise
of which members of the public are invited or admitted, and empowered
by its constitution to exercise control over or adjudicate upon persons
connected with or taking part in the game, sport or pastime;
(d)
an association formed for the purpose of promoting charitable objects
or other objects beneficial to the community and empowered by its constitution
to exercise control over or to adjudicate on matters of interest or
concern to the association, or the actions or conduct of any person
subject to such control or adjudication.
15. - (1) A fair and accurate report of, or copy
of or extract from, any adjudication, report, statement or notice
issued by a body, officer or other person designated for the purposes
of this paragraph-
(a) for England and Wales or Northern Ireland, by order of the Lord Chancellor,
and
(b) for Scotland, by order of the Secretary of State.
(2) An order under this paragraph shall be made by statutory instrument
which shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(B) QP IN COMMON LAW
ie,
made up by judges, convention, etc, not by statue.
Qualified
privilege in common law rests on the case of Toogood v Spyring (1834)
1 CM&R 181, 193, and onm the idea of "the common convenience
and welfare of society", that is, the public interest.
The
judge in case 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."
The
classic case of common law QP would be a lecturer writing a reference
for a student. He would have a duty to tell the truth about teh student
even if that truth were per se defamatory. But there would
be the protection of QP so long as the reference was written without
malice, and there had been steps taken to make sure that it was factually
accurate. There are, in other words, various circumstances in civil
life where people "have to" make defamatory statements, in
fact have a duty to do so.
Another
example is that a doctor might say to another doctor that a named patient
had a certain disease. This is defamatory per se and might
be slander (the defence would be 'justification' if not for QP). But
it would be silly for somebody to sue doctors over their own written
medical records, so the doctors would have a form of QP. (A journalist
would not have a common law QP defence for printing medical records
- because it is not in the public interest public interest). In either
case the patient would be protected by confidentiality law anyway (that
is a seperate subject which we will deal with in subsequent lecture).
A doctor who said "I think you look like you have a disease" would
have QP even if it turned out that the person did not have the disease.
This
common law "duty" to say unwelcome things about people has
been developed to extend statutory QP (1996 Act) to the discussion
of various matters in the public domain. The common law has been bolstered
by the general thrust of the Human Rights act, and for provisions of
freedom of expression. Common Law QP has got stronger in recent years
(balanced, as it happens, with the privacy provisions of the Human
Rights Act - which we will deal with in a later lecture on privacy
and confiendtiality.
COMMON
LAW QP - THE CLEGG CASE
This
was the first significant case where reference to the Human Rights
Act was introduced. The result (the
actual judgement) is here.
An
easy description of the Clegg case and its circumstances can be
found here on BBC news online.
What
happened was that at a public meeting a group of anti-IRA activists
in Northern Ireland it was claimed that a firm of solicitors (Mccartan
Turkington Breen) were prosecuting a soldier (Clegg) who was accused
of shooting innocent youths, in order to further the aims of the provisional
IRA and that the lawyers were in effect ‘helping terrorism’ or
were even (by innuendo) terrorist themselves.
When
these allegations were reported the lawyers sued for libel. The law
firm won £145,000 damages, but the papers appealed and the decision
was overturned. On appeal (2000) the lawyers lost, and the papers won,
because judges said it was in the public interest that these allegations
were made and discussed, so long as the lawyers’
own denials were properly reported (ie the reports were balance, free
from factual error, free form malice as with QP in reporting court cases
and other events in the schedule of the 1996 defamation act).
There
was a lot of interest in the case because:
(a) It was the first case in which the provisions for freedom of expression
in the Human Rights acts were used to protect newspapers
(b) It seemed to extend the protection of QP from the courts, through
official meetings like those set out in the 1996 defamation act,
towards informal events like press conferences, public political
meetings and (perhaps) even press releases about meetings like this.
In
2000 Lord Bingham, commenting on the Clegg case (SEE
HERE) emphasised and strengthened the meaning of a “public
meeting” which might be reported with a type of qualified privilege.
Such a gathering is defined in the 1996 act in section 12 as:
(1)
A fair and accurate report of proceedings at any public meeting held
in a member
(2) In this paragraph a "public meeting" means a meeting bona
fide and lawfully held for a lawful purpose and for the furtherance or
discussion of a matter of public concern, whether admission to the meeting
is general or restricted.
ALBERT
REYNOLDS vs SUNDAY TIMES
The Sunday Times said that Irish Prime Minister Albert Reynolds lied
to the Irish parliament in order to cover up a child abuse scandal
in teh Catholic church. The paper said it believed the allegations
were true, but when challenged by Reynolds they could not prove the
allegations because (as often must be the case with corruption) there
were no witnesses, and no forensic or documentary evidence. Mr Reynolds
might have taken the view that all he had to do was deny the allegations
and say “where’s your proof”, since in defamation
the onus is on the journalist to prove the allegations.
But when the case came to the higher courts (1989), the judges thought
the Sunday Times had 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. Underlying
everything was the (then new) Human Rights Act with its new provision
for freedom of expression. More generally, there is an American-type
trend towards public officials enjoying less protection from defamation
than strictly private citizens, at least in so far as allegations are
made about the performance of their public duties.
(Ever since the 1993 Bookbinder/ Derbyshire County Council case, politicians
have faced the risk of losing in libel actions, if the REPORTED allegations
made against them (even if wrong or debatable) are accurately summarised,
are purely about their public duties, and are reported without malice.
But if the allegations are about private life, then they still have
full protection (as in the John Major vs the New Statesman case.
In the Major case the New Statesman said he had an affair and kept
a mistress. John
Major case here.
THE
REYNOLDS CASE and the 10 POINT TEST
Lord
Nicholls, the judge in the appeal stage of Albert
Reynolds vs Sunday Times (1999), seemed to further define/extend
QP-type protection against defamation, so long as the reporter was
working without malice (as always with QP – you need lack of
malice, accuracy and timeliness), had taken reasonable steps (not reckless)
and so long as it was a matter of ‘public interest’
(ie not just a purely private matter).
Lord Nicholls said: ‘The press discharges vital functions as a
bloodhound a well as a watchdog. The court should be slow to conclude
that a publication was not in the public interest and, therefore, the
public had no right to know especially when the information is in the
field of political discussion. Any lingering doubts should be resolved
in favour of publication.”
However Lord Nicholls emphasised a ‘duty to publish’
if the newspaper or a reporter thought he knew there was something seriously
wrong (bloodhound as well as a watchdog).
His ten point test of responsible journalism is well worth dwelling on
because it forms a curriculum really for journalism of the highest
quality which (quiet rightly) should enjoy a degree of legal protection.
1. The seriousness of the allegation – the
more serious the allegation, the more protection will be applied.
Trivial allegations which are merely embarrassing would probably
not enjoy the protection. Allegations about purely private matters
would probably not enjoy protection.
2.
The nature of the information and the extent to which the
subject matter is a matter of public concern. This follows from schedules
I or II of 1996 act - essentially anything related to matters that
would be discussed in forums listed in schedule I (ie the discussion
of politics, or the content and conduct of trials) would be protected
and almost certainly matters that would come up in forums detailed
in schedule II would also be covered. Again, allegations of a private
nature are excluded (except in so far as they might impact on performance
of public or official duties). NB Discussion of what goes on in companies
would have more coverage if it is a floated public company with shareholders,
or if it was significant in the economy as a whole.
3 . The source of the information. The more authoritative
the source, the more you are entitled to report their allegations,
even if those allegations can not be proved or even if they turn
out to be (to your surprise) incorrect. The test is – “would
they have a reason to lie to me?”. So obviously chequebook
journalism (where people are paid to make allegations) is not very
safe, and would have less protection than allegations made by a responsible
person with no axe to grind, and with a reputation for honesty. Also
persons with a direct view of event or direct access to information
are more to be believed (and therefore your report of what they say
more protected) than second hand sources. Sources
‘on the record’ are more protected than anonymous sources.
Two sources (or more) saying the same thing independently would of course
be much stronger than a single source.
4.
The steps taken to verify the information. There must be
a reasonable attempt in the time available (see below, point six
urgency). The crucial thing is to try and put the allegations to
the person being accused in order to get their side of the story.
Obviously they will be evasive (especially if they have something
to hide) and may give you the ‘run around’ in order to
deny you protection under this very point in the ten point test.
But you must either get to the person and make the allegation or,
at the very least, be able to show a whole log of e-mails and phone
calls where you make determined efforts to get their side of the
story. A simple “they wouldn’t answer the phone”
or “they were unavailable for comment” might not be good
enough for this test (it was in fact where the daily Telegraph came unstuck
in the Galloway case – see below).
5.
The status of the information. You need to check that this
is not 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. For example if the allegation was about a doctor in a
hospital. If the allegation had already been through some sort of internal
enquiry at a hospital and had been dismissed, you may well lose your
protection in repeating it, especially if you overlooked previous dismissal
when you were trying to verify the information (see point 3 above – ‘steps
taken to verify’).
6. The urgency of the matter. The judge recognised that news
is “a perishable commodity” and that papers must compete
to be first with the news. If the matter genuinely is urgent (eg to bring
something like corruption to the attention of voters before polling day)
then the other checks in the code might be less stringent and might still
enjoy protection.
7.
Whether comment was sought from the claimant – together
with point 4 above and point 8 below, although 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. As a practical point it is always wise to get the other side
of the story and have them point out how or why the allegations might
be untrue, then incorporate this in your report. Such a statement
might also provide you with a ‘consent’ type defence
to a libel action.
8.
Whether the article contained the gist of the claimant’s side
of the story (see above, points 4 and 7
9.
The tone of the article. If the angle of a piece is along
the lines of allegations of X have raised concerns… this would
probably more protected than a straightforward assertion that the
allegations are fact. It is always important to attribute the allegations
to a named source (‘on the record’) if possible. If the
source is not named there must be a genuine and obvious reason for
this (eg they fear getting the sack, or being attacked). But with ‘protected
sources’ and ‘off the record’
there is always the separate (and growing) legal danger of action for
breach of confidence.
10.
The circumstances of the publication, including the timing.
The allegations should be brought to public attention as quickly
as possible. They should not be ‘saved up’ for commercial
motives by the paper or broadcaster. This is similar to the need
to publish/broadcast quickly in ordinary QP of court and parliamentary
reports.
THE
LOUTCHANSKY CASE
In this case (which is also of interest because of the separate problem
of ‘internet libel’ – ie each time an article is
loaded from a newspaper online archive it constitutes a fresh instance
of ‘publication’ and can thus activate a libel action)
the judge worked
his way methodically through all ten points of the Reynolds
‘responsible journalism’ test. It is very useful to follow
his points.
THE
GALLOWAY CASE (a Reynolds defence fails)
The Daily Telegraph attempted a Reynolds defence to an action from George
Galloway after the paper made very serious defamatory allegations
against him, for which there was no defence of JUSTIFICATION (true and
can be proves) or COMMENT or QP in the sense that it was reporting
‘second hand’ what had been said in court. Instead the paper
was quoting a source it said it trusted.
The Telegraph lost the case because the journalist failed the ’10
point test’ – in this case mainly because, despite a quick
call to Galloway, the paper did not put all its allegations to Galloway
for him to deny before they published the information.
If the reporter had shown Galloway all the ‘secret documents’
ity had been given, and really given Galloway a chance to persuade the
reporter they were not true, then there might not have been a legal action.
Commentary
on the Galloway case and Lord
Nicholls’ Ten Point Test
ANOTHER WORRYING REYNOLDS FAILURE –Mohammed Abdul Latif
Jameel vs Wall Street Journal (Feb 2005)
The
paper thought it had reasonable grounds for airing allegations from
what it believed to be a good source that a certain Saudi
Arabian businessman was involved in financing terrorism. The report
could not prove the allegation, but believed that she had a Reynolds “duty” to
report that the allegations were being taken seriously by various important
and responsible people. But the allegations could not be proved, and
therefore not defended with “justification” so she relied
on a Reynolds defence. In her own view (and the view of many commentators)
she though she had stayed within the 10 point test. But Lord Phillips
on appeal did not agree. The
Wall Street Journal loses.
But
the Wall Street Journal appealed.
Lawyers for the PPA note:
The Lords held that Reynolds had been interpreted too
strictly in the past: the 10 criteria, including steps taken to verify
the information and the tone of the article, were pointers as opposed
to hurdles for the media.
The result of the Jameel case is that the media have
much more freedom when reporting matters of public interest, where it
may not be possible to subsequently prove the truth of the allegations,
provided that they act reasonably and in the public interest.
There is no legal definition of 'the public interest'
so rely on the definition given in the PCC
code of conduct - the main points being
(1) exposing crime
(2) exposing health risk to the community
(3) exposing lying and hypocrisy in public life
What the PCC actually says about the public interest
is lengthy. Here it is:
interest
There may be exceptions to the clauses marked
* where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined
to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement
of an individual or organisation.
2. There is a public interest in freedom of expression itself. [CH adds
- this has the nacking of the law, section 10 of the Human Rights Act]
3. Whenever the public interest is invoked, the PCC will require editors
to demonstrate fully how the public interest was served.
4. The PCC will consider the extent to which material is already in the
public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an
exceptional public interest to over-ride the normally paramount interest
of the child.
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