Qualified privilege: cases and commentary

Privilege provides journalists with protection to report on routine activities including: public meetings, council hearings, tribunals or court. The public interest defence demands that there should be complete freedom of speech without the legal risk of defamation when reporting proceedings.

There are two types of privilege: Absolute and Qualified. Absolute privilege covers journalists reporting in court or tribunals as long as the reports are fair, accurate and contemporaneous. Qualified privilege is one of the main defences for defamation so long as the reports are without malice and in the public interest. It allows you to see boundaries of what you can report, some have protection and some don’t.

It must be remembered that privilege does not cover defamatory comments shouted from the public gallery in court.

One very recent example of journalists having absolute privilege is the reporting of Ed Miliband accusing Lord Fink of tax avoidance. Miliband was quoted in PMQs as saying ‘Tory tax dodgers’  the sentence after mentioning Lord Fink. This is dangerous innuendo. Lord Fink then told the press if Miliband repeated such claims outside of the House of Commons he would sue – politicians have privilege within House of Commons also.

The Rotherham Council report into investigations of child sex abuse was pushed to be published by the House of Commons so that journalists could report the document safely with privilege.

Plebgate row: reports by journalists on the event needed serious legal cover to say that police had lied in meeting.

QP is limited – that is why it is qualified – journalists may need to publish explanation or contradiction.

The privilege applies in legislature, by government or court anywhere in the world, tribunals, pressers, written handouts, public meetings, verbal comments by a press officer and, police statements.

Journalists should always consider the risks of live broadcasting. Be sure to explain the risks to the news editor and always be prepared to jump in.

If something legally dodgy is aired, call the lawyers or put up a statement saying not own views?

An inquest’s main purpose is to determine how a person died. The coroner can call witnesses and acts as a inquisitor but they are not there to act as a prosecutor or the defence. Coroners give a narrative verdict, summing up the facts of death. Sometimes inquests have juries but not too often – for example Hillsborough is a huge inquest happening at the moment with a jury.

Coroners can also decide what is classed as a treasure.

Reporting sex offences:

Lifelong anonymity is given to any victim regardless of the outcome unless consent is given to waive it. Alleged offenders are not protected apart from teachers – Cliff Richard is an example of being identified when police searched his home and the BBC showed helicopter footage of the search.

A teacher at Alteringham Grammar School was identified as he was central to the case.

Qualified privilege: defence requirements

Qualified privilege is a defence for the publication of certain types of information that are in the public interest. There is no requirement for the publisher to prove the information is true.

The defence applies to media reports of press conferences, Parliamentary debates held in public and, public meetings of councils. It also applies to media reports of statements issued for the public by government, councils, police etc. QP protects non-contemporaneous reports of court cases, including references to people’s past convictions.

For absolute privilege, the publisher’s motive is irrelevant but for qualified privilege, if the claimant can show malice the defence fails.

Requirements/key points:

• Fair and accurate, without malice, and in the public interest
• Is there a requirement to publish explanation or contradiction? -An example of QP without explanation or contradiction would be proceedings of a legislature anywhere in the world.

  An example of QP with explanation or contradiction would be material reported at a public meeting

• Statute only protects a report of the occasion, not statements said out of the environment
• Reports of public meetings, press conferences, scientific and academic conferences held anywhere in the world
• Documents handed out in public meetings or press conferences have QP
• Not all authorities are covered but some are covered by privilege at common law
• Verbal comments by press officers are generally covered by QP
• Disciplinary actions by private associations

Inquests are court hearings, and so are covered by the law of contempt of court, which can affect media coverage.

Tribunals can make temporary anonymity orders in cases involving sexual misconduct. Contempt law applies to tribunals that are classed as a court. Media reports of the public proceedings are protected by QP and by absolute privilege when reports are contemporaneous.