Media Law Lecture Notes 4: The Defence of Privilege

October 27, 2011

The defence of qualified privilege gives permission to make, quote, or report statements that would otherwise be considered slander and libel.

If you prove a comment is completely true you cannot be sued for defamation - however truth is not legally safe due to privacy issues.

You can prove a comment is true by having it independently verified by sources, for example obtaining a sworn statement (witness statement).


Privileges comes in two forms, absolute and qualified, and both assert that statements made in certain situations should have immunity from other civil proceedings, even if they are untrue, defamatory or damaging. 

Absolute Privilege: 

Defaming statements made in Parliament, court, under oath or other protected occasions are protected against defamation law. 
Absolute Privilege means absolute exception from the law. For example, The Queen has absolute privilege she is above the law; therefore she can not by definition murder someone; she can however kill someone. 

Absolute privilege is used in limited circumstances: Judges for example cannot be sued for libel, and in court neither can witnesses, defence and council, lawyers.

You can never have Absolute Privilege as a journalist.

Qualified Privilege: 

The defendant must not act out of malice, but has the defence of privilege if the report is in the public interest to publish. 

The Defamation Act 1986 provides a statutory qualified privilege for any material that is of public concern and for the public benefit.

Journalists have Qualified Privilege, with the limitations of being fast, accurate, fair. fast, you have to publish it at the next possible broadcast/publication, accurate, spelling, facts etc, fair, free from malice. 

Qualified privilege provides a conditional defence to a claim in defamation only if a statement is made without malice.

Statutory Qualified:
Privilege referes to comments made in court, and gives you a defence for reporting defaming comments that have been said during a trial.

Common Law:

Qualified Privilege is the defence used outside of court. You can use this defence if you suspect someone is acting against the law. It has to be without any malice, fast, accurate and fair and there must be reasonable suspicion.

Common Law Definition:
The law of the land, which is constantly being changed. As judges applied law to cases before them, their decisions and outlines were recorded by lawyers, and is used as a guideline for other judges (but is variant depending upon the judge). This process still continues today. The decision can be challenged and appealed to the higher court however; the decision made by the higher courts are therefore binding on all lower courts, and therefore shape future rulings.

Reynolds Case:

Albert Reynolds.

Qualified Privilege has become very important in the UK, especially after a case involving allegations made by the Sunday Times against the Irish Taoiseach Albert Reynolds. 

The article asserted that Mr Reynolds had deliberately misled the Dail (Irish Parliament) and that he had suppressed important information about his colleague, Harold Whelehan. It was alleged that this concealment was to assist Mr Whelehan in his bid to become President of the High Court. It was suggested by the Sunday Times that, had the facts not been concealed, Mr Whelehan's appointment would have been rendered unconscionable. Mr Reynolds brought a claim for defamation against the newspaper. 

In considering the appeal, it was necessary for their Lordships to consider whether to create a new category of occasion when privilege would derive from the subject matter alone, namely political information. The newspaper argued that malice apart, publication of political information should be privileged regardless of the status and source of the material and the circumstances of the publication. 

Ten Point Test:

The judge therefore outlined a ten point test of 'responsible journalism'. If reporters and editors followed these points, the judge said, they would enjoy a degree of protection from libel action, even if they could not prove factual allegations. 

1: Seriousness of allegation -the more serious the allegation, the more the public is misinformed. 

2: The nature of the information -the extent that the subject matter is a matter of public interest. 

3. Source of information -some informants have no direct knowledge of the events, have their own axes or are being paid to give the media information.

4. The steps taken to verify the information 

5. The status of the information -does the publication command respect from the general public (think Family Guy). 

6. Urgency of the matter -News is often perishable. 

7. Whatever comment was sought form the claimant -the claimant may have information not available for others. 

8. Whether the article contained the gist of the claimants side of the story -the claimant has the right to defend themselves. 

9. The tone of the article -A newspaper can raise queries, call for an investigation or assist the police looking for people needed for questioning. 

10. The circumstances of the publication -includes timing. 

Also note: 

The Duty Test: Was the publisher under a legal, social or moral duty to publish the material?

The Public Interest test

The Circumstantial test

Concept of public interest: PCC code of conduct:

1) Detecting crime or serious impropriety.

2) Protecting health and safety.

3) Preventing the public being mislead.

Be sure to balance the story by adding "he denies charges", "the case continues" etc.

Fair Comment: You can express your comment so long as there is no malice, it's your honest opinion based on fact, expressed in the public interest and if you sincerely believe your statement.

Positive Malice: Positive malice is for example, receiving free goods from a company and in return a journalist will give them a good review.

Parliamentary Privilege: You must give equal provence to the prosecution and defence 

Parliament and contestation law reports are protected. 

Clegg Case: Absolute privilege? 

Sergeant Lee Clegg is a British Army soldier who was convicted of murder for his involvement in the shooting dead of two teenage joyriders in West Belfast, Northern Ireland. His conviction was later overturned.

The shooting took place in West Belfast on 30 September 1990. 

Clegg, then a private originally from Bradford, England, and his fellow soldiers manning the checkpoint on the Upper Glen Road, fired nineteen bullets into a stolen Vauxhall Astra that passed through their checkpoint travelling at high speed. 

Clegg fired four of the bullets, the last of which killed the passenger, and the driver and left the third passenger with minor injuries.

Clegg was sentenced to life imprisonment for murder in 1993, the court having decided that lethal force had been used without a lawful purpose. 

The fourth bullet was said to have been fired through the back of the car as it was leaving the checkpoint and was therefore no longer a threat to the soldiers. 

The murder conviction was condemned by unionists and some British newspapers, including the Daily Mail, which began a campaign for Clegg's release on the grounds that he was just doing his job in difficult circumstances.

Clegg was released under licence by the Northern Ireland Secretary in 1995, which in turn led to rioting in nationalist areas of Belfast.

A set of appeals to the Court of Appeal and House of Lords led to the quashing of the murder conviction in 1998 and a re-trial in March 1999, on the grounds that new evidence suggested that the fourth bullet entered the side of the car. 

At the retrial Clegg was cleared of murder, but a conviction for "attempting to wound" was upheld.

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