Page 58 - Law and the Media

Defamation
make allegations that, if uttered in public outside the chamber of the House of Commons,
would probably see them on the receiving end of an action for defamation. However, the
media should take care when reporting such accusations. If the statement is repeated outside
the Houses of Parliament, it only attracts qualified privilege. If a defendant in defamation
proceedings is unfairly prejudiced by his inability to challenge statements made in
Parliament because of the privilege, the action can be stayed. A Member of Parliament may
waive the privilege for the purposes of defamation proceedings (Hamilton v Al-Fayed
(1999)).

Statements made in the course of judicial proceedings
This covers statements made by witnesses, lawyers and judges, and extends to all
documents produced for or during court proceedings or other tribunals that exercise
judicial functions such as industrial and employment tribunals. The privilege extends to
witness statements, court documents, any statement made as part of the process of
investigating crime, and complaints and statements supplied to the Securities Association
in its function as regulator of financial services (Mahon v Rahn (2000)). It does not,
however, extend to fabricated evidence (Darker v Chief Constable of the West Midlands
Police (2000)).

As the defence only applies to proceedings held in open court, it is not available to those held
‘in camera’ – in other words, in closed court. The privilege covers court proceedings in the
United Kingdom, the European Court of Justice, the European Court of Human Rights,
and any international criminal court established by agreement to which the United Kingdom
is a party.

Fair, accurate and contemporaneous reports of judicial proceedings
Under Section 14 of the Defamation Act 1996, these need not be verbatim. However, they
must be well balanced and materially accurate. More rather than less particulars are
desirable, especially in the case of identification. In Newstead v Express Newspapers (1940)
the newspaper report referred to ‘Harold Newstead, a Camberwell man’ reporting a
conviction for bigamy. Failure on the part of the newspaper to specify the age, address and
occupation of the felon enabled another man of the same name living in Camberwell
successfully to sue for libel.

If the reporting of court proceedings is banned by court order under the Contempt of Court
Act 1981, the requirement that the report be contemporaneous will be met if subsequent
reports are published as soon as practicable after expiry of the order.

Court reports that are not published contemporaneously are nevertheless protected by
qualified privilege. By virtue of the Newspaper and Libel Registration Act 1881, free
newspapers and monthly magazines were also afforded only qualified privilege. However,
the distinction is now irrelevant for reports published after 1 April 1999 by reason of Section
15 of the Defamation Act 1996.
21