Chapter 67: Privilege

In this chapter, we look at the way in which many reports are protected from legal action for defamation. We see what conditions are necessary for a report to have this protection.

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What is privilege?

As we saw in Chapter 63: Introduction to the law, the law exists to protect the right of people to live their lives without harassment or interference by other people. That often means that one person's freedom has to be limited in one area so that another person's freedom can be protected in another area.

For instance, unless you have been arrested and put in prison, you are free to travel around town in your car, if you own one. But that freedom is limited in many ways, in the interests of other people's safety.

In the first place, you may only drive that car if you have a driving licence, and to get that you have to prove that you know how to drive a car safely. Then you may only drive within the speed limit and only on one side of the road, unless you are overtaking. If a red traffic light is showing, you are not free to continue with your journey - you must wait until a green light shows in its place.

Sometimes, though, it is acceptable for people to break any or all of those rules. If an ambulance was rushing a sick person to hospital, and every second was precious in the race to save the person's life, then the ambulance driver may drive faster than the speed limit, drive down the wrong side of the road if it is clear, and drive through red lights. He will normally have a siren or bell sounding, to warn other drivers that he is driving in this way, and will take great care not to cause an accident.

This shows that there are times when rules may be set aside, in the interests of a greater good. In the case of the ambulance, it is important that seriously ill people should be taken to hospital as quickly as possible - more important than the traffic regulations. So, in those circumstances, the ambulance driver is allowed to go outside the rules without being prosecuted.

Privilege is rather like that. It is the opportunity for people (including journalists) to say or write things which they may not normally say or write, in the interests of a greater good.

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Courts and parliament

The two main areas where you will come across privilege are in reporting the proceedings of courts and parliament. In both cases, it would not be possible to carry out the job if the people involved were unable to speak openly and fearlessly.

As we saw in Chapters 64 to 66 on court reporting, witnesses and others involved in court cases may need to say things about the defendant which are damaging to his reputation. But as you will see in Chapter 69, the law of defamation prevents people saying untrue things about other people which damage their reputations.

It would be impossible for the courts to operate if a witness who gave evidence for the prosecution could be sued for defamation if, at the end of the trial, the defendant is acquitted. Witnesses must be free to speak what they believe to be the truth, even if it later turns out that they were wrong.

Similarly, Members of Parliament and other elected representatives of the people can only do their job if they are free to debate issues openly. The country cannot be properly governed by people who are muzzled.

So it is that all these people are protected by privilege. Nobody can be sued for defamation as a result of anything they say as part of court proceedings or proceedings of parliament.

The good news for journalists is that the law also extends privilege to newspaper, radio and television reports of courts and parliament, so long as they meet a few important conditions.

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Absolute and qualified privilege

There are two types of privilege. They offer slightly different kinds of protection, and the conditions which reports need to meet are slightly different for the two types. They are called absolute privilege and qualified privilege.

As far as people taking part in court proceedings and parliament are concerned, they are all covered by absolute privilege.

As far as the journalist is concerned, reports of court cases are usually covered by absolute privilege (there is one exception, which we shall deal with below); reports of parliament are covered by qualified privilege.

Absolute privilege

Absolute privilege is a complete defence against any action for defamation. It does not matter if the words said were the truth or a lie, or whether they damage anybody's reputation. It does not matter whether the person speaking them was motivated by concern for the public good or by the desire to hurt the person against whom they spoke.

In order to be protected by absolute privilege, a report of court proceedings must meet three conditions. It must be:

  • Fair
  • Accurate
  • Published contemporaneously

We shall look in detail below at what these mean.

Qualified privilege

Qualified privilege generally offers the same protection to the journalist as absolute privilege, but there is an extra condition which your report has to meet. In order to be protected by qualified privilege, your report has to be not only fair and accurate, it also has to be published without malice.

That means that your reason for publishing the report must be concern for the general public good. If you publish in detail on page one a report of scathing remarks made in parliament against a rival newspaper, then you will be open to the accusation that you were malicious. If a judge accepts that, then your report will no longer be protected by privilege, and you will need to defend it against an action for defamation in other ways. These are discussed in detail in Chapter 69.

Several kinds of report have qualified privilege, so long as they are published without malice:

  • Fair and accurate reports of parliament. This includes reports of the contents of official parliamentary papers and reports, as well as debates in the chamber
  • Fair and accurate reports of court cases which are not published contemporaneously
  • Fair and accurate reports of public inquiries
  • Fair and accurate reports of meetings of local authorities, trustees or boards, if what they are discussing is a matter of public concern
  • Fair and accurate reports of public meetings, if what they are discussing is a matter of public concern

In all the last three cases your report will only be covered by privilege if what is being discussed is a matter of public concern. For example, if a board of trustees meets to discuss two items - whether to withdraw its investment in a company with North Korean connections, and whether the chairman's secretary can have an extra week's holiday to look after her sick mother - then you have to decide whether they are matters of public concern.

It is clear that the first item is, so any report you publish will be protected by qualified privilege. The second item about the secretary’s leave is clearly not a matter of public concern, so you must be careful in your report not to include any defamatory material, even if such things are said at the meeting.

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Conditions for absolute privilege

In order to be covered by the protection of absolute privilege, we have already seen that a court report must be fair, accurate and published contemporaneously. Let us now consider what each of these means in practice.

Fair

A court report is fair if it presents both sides of the case roughly equally. This does not mean that you have to report every word that was said, but it does mean that you cannot report the whole of the prosecution case and just a tiny bit of the defence - or the other way round.

Accurate

Reporters must not make mistakes. What a witness or board member says may be quoted, but it must be an accurate quote. Minor mistakes will not matter but if you make any significant error, your report will not be protected by privilege. Court reporters need good shorthand.

Published contemporaneously

This means "in the next issue of the newspaper or the next news bulletin". A fair and accurate court report which is published contemporaneously is protected by absolute privilege.

However, even if the report is published later - whether it is two issues of the paper later or two years later - it can still be protected by qualified privilege. As we saw above, that means that it is privileged as long as publication was not motivated by malice.

For instance, a court case which finished late on Thursday afternoon may not have been written up in time to be included in Friday morning's paper. Perhaps the paper is not published on Saturdays and Sundays, and perhaps the following Monday there was a big news story and lots of weekend sport to fit into just a few pages. As a result, the report of the court case does not appear until Tuesday morning.

This report has not been published contemporaneously, so it does not have the protection of absolute privilege. However, under normal circumstances the qualified privilege would offer just as good protection to the newspaper, since there is no malice involved in its late publication.

Now let us consider a very different situation. Imagine that a man is standing for election to parliament, and you know that he appeared in court two years earlier charged with illegally possessing a firearm. He was acquitted (found not guilty), but during the trial some very damaging things were said against him.

So, on polling day, your newspaper publishes a report of that court case, highlighting the bad things which were said against him. The only reason for doing such a thing can be that you want to stop this man winning the election. This would be clearly malicious and you would not be able to defend yourself against an action for defamation by claiming that the report was privileged.

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Conditions for qualified privilege

We have already seen that the main conditions for a report to be protected by qualified privilege are that it is fair, accurate and without malice. There are two important tests for indicating whether there was malice: whether there has been a demonstration of good faith and whether the newspaper, radio or television station has allowed the right of reply.

Good faith

Very often, the protection of qualified privilege will depend on whether or not the report was published in good faith for the information of the public.

That means the newspaper, radio or television station has no bad feeling towards the person who is being defamed, and is reporting the news in its usual way.

For example, imagine that a public meeting has been called to discuss the way in which a headmaster is running his school, and some very harsh things are said about him at the meeting. The headmaster chooses not to attend the meeting, but you do. You may report everything that is said, as long as you have no personal grudge against the headmaster and the newspaper, radio or television station has no grudge against him. The meeting must also be reported in the way that you usually report such public meetings.

Your private view of the headmaster is your own business, but it must be clear that the purpose of your report is to inform the public of what was said at the meeting, not to damage the headmaster's reputation.

If that headmaster expelled you when you were at school, you should ask the editor to send someone else to cover the meeting; otherwise you could later be accused of having a grudge against the man and acting maliciously.

Right of reply

One way in which a newspaper, radio or television station can show that the original report was published in good faith is to allow the person defamed the right of reply.

That headmaster, after reading your report, might ask to be allowed to write a letter for publication, stating his side of the case. If you refuse, or if you accept his letter but do not bother to publish it, you will demonstrate that you lack good faith.

All the same, you do not need to let him write as long a letter as he likes. Generally speaking, you should let him write a letter which is about as long as the report which he is complaining about. If the original report was 350 words long, and he produces a 2,000-word letter, he must be politely but firmly told either to cut it himself or to accept that you will cut it. He has the right of reply, but not the right to take over the entire newspaper.

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TO SUMMARISE:

Privilege is a way of permitting people in certain circumstances to defame other people, without any danger of being sued

Qualified privilege is usually as good a protection as absolute privilege

You must take care that you publish all reports in good faith and allow reasonable right of reply

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Index to Chapter 67
  1. What is privilege?
  2. Courts and parliament
  3. Absolute and qualified privilege
  4. Conditions for absolute privilege
  5. Conditions for qualified privilege
  6. To summarise
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