Page 60 - Law and the Media

Defamation
In cases of mass publication, the material must concern a matter of public interest. A
privileged occasion will exist if:

. . . the public is entitled to know the particular information. That is, if it was the
journalist’s social or moral duty to communicate it and the interest of the particular
public to receive it. This is determined in the light of all the circumstances of the
publication.

(GKR Karate (UK) Ltd v Yorkshire Post Newspaper (2000))

In such circumstances, when considering whether the defence of qualified privilege is
applicable the court must take into account the circumstances of publication, including the
source, status and nature of the material as well as the seriousness of the allegation, the steps
taken to verify the information (including any approach to the claimant), and the urgency of
the matter. There is no general qualified privilege in the mass publication of political
information (Reynolds v Times Newspapers Ltd (1999)).

Like the defence of fair comment, but unlike the defence of justification, a defendant who
raises qualified privilege may not rely on matters occurring after publication (Loutchansky
v Times Newspapers Ltd (2001)).

This category of qualified privilege has been developed in recent years becoming
increasingly available to mass publication in the media. In Loutchansky v Times Newspapers
Ltd & Ors (No 2) (2001) the Court of Appeal said that the single test the court has to ask itself
was whether the ‘duty-interest’ question had been satisfied so that qualified privilege
attached and if it did this pre-empted a finding of malice.

The interest is that of the public in a modern democracy in free expression and, more
particularly, in the promotion of a free and vigorous press to keep the public informed. The
corresponding duty on the journalist (and equally his editor) is to play his proper role in
discharging that function. His task is to behave as a responsible journalist and in determining
whether this standard is reached the court will consider the ten (inexhastive) factors set out
in Reynolds including urgency of matter, reliability of source and attempts to corroborate.

Unless the publisher is acting responsibly privilege cannot arise. That is not the case with
regard to the more conventional situations in which qualified privilege arises. A person given
a reference or reporting a crime need not act responsibly: his communication will be
privileged subject only to relevance and malice.

Fair and accurate parliamentary reports
Providing the simple requirements of fairness and accuracy are satisfied, the media is given
a good deal of latitude in the reporting of Parliament, safe from the threat of libel lawyers.
As long as the reporting itself is accurate and honest, the publisher will not be liable if the
original statement that is the subject of the report is incorrect.
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