“IN THE PUBLIC INTEREST” does not mean “INTERESTING”
Qualified Privilege, the third defence against libel, gives the journalists the right to make defamatory statements under special circumstances. There are two main types of QP:
Statutory Qualified Privilege
There are many places in which a defamatory statement can be said and then reported by a journalist without fear of libel action. The main two are court and in Parliament. But the report must be fast, accurate and fair in order to avoid accusations of malice. You must give the accused an an opportunity to refute the accusation, and this must be included in the same report. If you don’t do this, you can lose you QP defence. Statutory privilege also applies to any public meeting/proceeding in the world, such as UN meetings and other recognised courts. It is worth checking which courts are and are not recognised. French courts, for example, are not recognised.
Common Law Qualified Privilege
To make a defamatory statement is acceptable even if you can’t prove it, provided it is in the public interest. The problem here is that this is a developing law and is looked at on a case by case basis. This means you can’t really be sure whether this applies to your report until a verdict is delivered in court. Again, the allegation must be honestly made and without malice.
The Reynolds Defence
In 1994 The Sunday Times ran an article, without evidence, stating the Albert Reynolds, Taoiseach of Ireland, was aware of systematic child abuse within the Catholic Church, seriously defaming him. He sued and won, but the decisionwas later overturned as it was found that The Sunday Times had QP as it was in the public interest to make the report. Lord Nicholls said: “Any lingering doubts should be resolved in favour of publication.
This is The Reynolds Defence, but you can only use this provided that you pass…
THE TEN POINT TEST
1. It must be a serious matter. The more serious, the more protection you have.
2. The nature of the information, and the extent to which it is a public concern. Is it the kind of thing which would be likely to be said in a public forum?
3. The source of the information. Your source must be reliable, creditable and authoritative. The more authority, the more protection.
4. The steps taken to verify the information. The must show that you tried to prove the information wrong.
5. The status of the information. It must be new information.
6. The urgency of the matter. Papers must compete to break news first. No trawling.
7. Whether comment was sought. The person to whom you are bringing the allegations must be given chance to comment. This is known as the final phone call. The Telegraph lost a case against George Galloway because they did not thoroughly bring the accused person into the story and did not give him a chance to deny the accusations.
8. Did the article contain the right ‘gist’? It is not enough to satisfy the other points if the article was unfairly angled or slanted.
9. The article must have the right tone. It must not be overly sensationalist. Understated is better, and it is safer to say things like “concerns have been raised” rather that issuing statements of fact.
10. The circumstances of the publication. If the article is not published quickly, for example, but saved for commercial gain or timed to make it more sensational, it would be difficult to argue that you had the best interest of the public in mind.
Refer to the lecture notes for more detailed information. Also, i found a page on the website of Schillings, a respected media law firm, advising people how to challenge journalists with the ten point list. It’s well worth a look to see things from the other side of the desk. This list on this blog is okay for a reminder or prompts, but probably not enough for thorough revision.
The Press is The Fourth Estate:
1st: Executive- Government, Whitehall
2nd: Legislature- Parliament
3rd: Judiciary- The Courts. Mediates between Executive and Legislature.
4th: The Press is the watchdog of the people. The Press will blow the whistle if the other estates are wrong or corrupt, and will strive to identify miscarriages of justice.
Affidavit: This word is not officially in use anymore, the document now being called a Witness Statement, but it is the same thing. It is a statement which is sworn in front of a notary solicitor (which costs money) or a Magstrate (which doesn’t). It is essentially proof that someone said something. This is useful for a journalist as a witness statement from a credible source can help enormously with the first libel defence, justification.