Page 57 - Law and the Media

Law and the Media
motives of their own reporters but they will not be infected by those of other people – for
example, interviewees or letter writers who appear genuine but are in fact vindictive.

The legal principle governing such situations was expounded by Lord Denning in Egger v
Viscount Chelmsford (1965), which involved an allegation of malice against the secretary and
10 members of the Kennel Club who had written a letter that was critical of the claimant. The
court held that although the letter was jointly published by all defendants, the malice of some
of them did not infect the others. Lord Denning said:

If the claimant relies on malice to aggravate damages, or to rebut a defence of
qualified privilege, or to cause a comment, otherwise fair, to become unfair, then
he must prove malice against each person whom he charges with it. A defendant
is only affected by express malice if he, himself, was actuated by it; or if his
servant or agent concerned in the publication was actuated by malice in the course
of his employment.

1.3.3 Privilege

The third category of defence upon which the media relies regularly is privilege. This comes
in two forms: absolute and qualified. Both are the result of public policy considerations that
recognize that statements and publications made on certain occasions should have immunity
from civil proceedings even if they are untrue and damaging.

Absolute privilege
Where absolute privilege applies, no action for defamation may succeed, irrespective of the
honesty or motive of the writer or broadcaster. It is the strongest defence available to libel
defendants. Where it is applicable it will succeed, no matter how false and defamatory the
statement and no matter how malicious the writer or broadcaster. The occasions of absolute
privilege are few in number and narrowly defined. The categories most likely to affect the
media are:

Statements made in, or as part of, the course of parliamentary proceedings
Statements made in the course of judicial proceedings
Fair, accurate and contemporaneous reports of judicial proceedings.

Other areas of absolute privilege include confidential communications between lawyers and
their clients, official reports published by order of either Houses of Parliament, and
communications between officers of state in the course of their duty.

Parliamentary statements
Defamatory statements made inside the Houses of Parliament are absolutely privileged. This
means that on numerous occasions MPs have used the absolute privilege afforded to them to
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