Qualified Privilege

Qualified Privilege Under the Defamation Act 1996

Qualified privilege provides a conditional defence. If a statement published on an occasion of qualified privilege is published maliciously, then the defence will fail.

The Defamation Act 1996 provides a statutory qualified privilege for material that is of public concern and for the public benefit. The Defamation Act 1996 distinguishes between statements that attract qualified privilege without explanation or contradiction and those that are privileged subject to explanation or contradiction.

Statements that qualify for qualified privilege without explanation or contradiction are as follows:

Fair and accurate reports of public proceedings of legislatures, courts, government appointed public inquiries, international organisations/conferences anywhere in the world.
A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.
A fair and accurate copy of or extract from matter published by or on the authority of a government or legislature or by an international organisation or an international conference anywhere in the world.

T he defence of qualified privilege will be lost if the claimant shows that he or she requested the defendant to publish a reasonable letter or statement by way of explanation or contradiction and the defendant refused or neglected to do so in relation to the following reports and statements:

A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of:
a legislature in any Member State or the European Parliament.
the Government (or any authority performing governmental functions) of any Member State or the European Commission.
an international organisation or international conference
A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice, or by a judge or officer of any such court.
A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of:
• a local authority or local authority committee.
• justices of the peace acting otherwise than as a court exercising judicial authority.
• a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland department.
• a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision.
• any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.
A fair and accurate report of proceedings at any public meeting held in a Member State.

A meeting is public if those who organise it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. This would usually include most press conferences.

Qualified Privilege at Common Law

Complaints or information passed under a public or private legal, social or moral duty to another individual with a duty to receive (including the relevant authorities), are protected by common law qualified privilege. Examples include replying to an inquiry for an employment reference, or to inquiries about a crime, and statements volunteered about crime or about the conduct of candidates for public office.

The courts have been reluctant to extend the defence of qualified privilege to provide the media with a ‘public interest’ defence. However, in Reynolds v Times Newspapers Ltd, the House of Lords recognised the ‘high importance of freedom to impart and receive information and ideas’ and observed that the ‘press discharges vital functions as a bloodhound as well as a watchdog’. Their Lordships declined to develop political information as a new subject-matter category of qualified privilege. They did, however, state that ‘the court should be slow to conclude that a publication was not in the public interest, and therefore, the public had no right to know’ especially when the information was in the field of political discussion. The court was to take into account the following ten, non-exhaustive, matters:

The seriousness of the allegation.
The nature of the information, and the extent to which the subject-matter is a matter of public concern.
The source of the information.
The steps taken to verify the information.
The status of the information.
The urgency of the matter.
Whether comment was sought from the claimant.
Whether the article contained the gist of the claimant’s side of the story.
The tone of the article.
The circumstances of the publication, including the timing.

Back to to top