Page 59 - Law and the Media

Law and the Media
Qualified privilege
Qualified privilege is capable of covering a wide variety of statements and communica-
tions. Certain occasions to which it attaches are defined with reasonable particularity.
Others rely simply on the existence of some duty or interest in the making of a statement
that, provided he is acting honestly, will protect the maker against an action for defamation,
even if the statement is inaccurate and defamatory. The defence has been developed over
the years to encourage and protect open and honest communications both of a public and
private nature that are recognized as being ‘in the general interest of society’ (Whiteley v
Adams (1863)).

Qualified privilege will arise where a person whose character or conduct has been attacked
is entitled to answer that attack. Defamatory statements made by the claimant about the
defendant will be privileged, provided that they are published in good faith and are fairly
relevant to the accusations made. The privilege extends to the person’s agent, for example his
solicitor (Regan v Taylor (2000)).

What distinguishes qualified privilege from absolute privilege is that the defence fails if the
claimant can prove that the defendant was motivated by malice. Unlike those situations
where the privilege is absolute, a person who abuses an occasion of qualified privilege will
be liable to pay the normal penalty for defamation. The defendant has the burden of
establishing the facts and circumstances necessary to create the privilege (Watts v Times
Newspapers (1996)).

The categories to which qualified privilege will apply are:

Statements made where there is a moral, legal or social duty or interest in
communicating the relevant information
Fair and accurate reports of parliamentary proceedings and extracts from
parliamentary papers

Fair and accurate reports of judicial proceedings whenever and however made
Statements made on those occasions specified in Section 15 of the Defamation Act
1996.

Statements made from a moral, social or legal duty
Over the years the courts have developed the defence to protect the many instances in
everyday commercial, public and private life where information is passed on either from a
sense of duty or in protection of some valid interest of the informant. In order to merit
protection, the duty or interest must be shared between the publisher and the recipient of the
statement. In order words, the court must recognize that the publisher was acting properly in
passing on the information and that the recipient was the valid person to receive it. Examples
of such communications include character references by ex-employers, the reporting of
suspected crimes to the police, complaints about those with public authority or responsibility,
and credit assessments provided by banks. If, in circumstances such as these, damaging
statements are made that turn out to be inaccurate the publisher will not be liable provided
he has not acted from malice.
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