Privilege is a legal defence which offers protection for journalists (conditionally), and allows them to report on material which may be defamatory or untrue.
It protects journalists from facing legal action, i.e. being sued for libel, provided journalists meet certain conditions in their reporting. There are two types of privilege and the conditions which must be met differ depending on the type.
The two types of privilege are Absolute and Qualified.
Absolute privilege is a complete defence to legal action, which applies to when reporting on:
- anything said in a UK court
- the European Court of Justice and any court attached to that court
- the European Court of Human Rights
- international criminal tribunals established by the Security Council of the United Nations
- proceedings in UK Parliament
- reports by Parliamentary Commission
A journalist will be protected by Absolute Privilege as long as their reporting is:
- a fair and accurate account of proceedings
- contemporaneous (published at the first possible opportunity).
Qualified privilege is also a complete legal defence, which allows persons in positions of authority or trust, i.e. journalists, to make or report statements that would be considered libellous if anyone else made them.
In order to qualify for this defence all reporting must be:
- Published without malice
- Of public concern
- Subject to the right to reply in the form of a letter which gives explanation or contradiction (in certain cases, see below)
Unlike Absolute Privilege, the law does not require that it be contemporaneous – but different publications may have their own rules about this.
In some circumstances, reporting privileged material can be done without being subject to ‘explanation or contradiction’. These circumstances are:
- Public proceedings in a legislature anywhere in the world
- Public proceedings in a court anywhere in the world
- Public proceedings of a public enquiry anywhere in the world
- Public proceedings of an international organisation or conference
- Extract of any register or document legally required to be public
- A notice or advert published on legal authority anywhere in the world
- Extract of matter published on government authority anywhere in the world
- Extract of matter published by an international organisation
However in other cases the publication/broadcaster must publish a letter of explanation or contradiction submitted by a person defamed in a previous issue/broadcast. Some examples where this would apply are:
- Local councils and committees
- Tribunals, commissions and inquiries appointed by Statutory Provision
- General meetings of UK public companies
- Company documents or extracts from them
- Press conferences
- Press releases
An example from this week of Qualified Privilege in action, are the comments made by Ed Miliband in the House of Commons, accusing Tory Party donor, Lord Fink, of tax avoidance.
In ordinary circumstances the statement would be defamatory, and Miliband, and any reporters who repeated the allegation, would be vulnerable to libel action. But, as the comments were made in the House of Commons, they are protected by the defence of QP – something which Lord Fink himself acknowledged when asked about the truth comments, saying ‘if he says it outside of the Commons I’ll see’, suggesting that if Miliband were to repeat the allegations somewhere the defence of QP did not apply, he would sue him.