Privilege is important to a journalist, as it can allow something to be written or broadcast that could be of a defamatory nature. At the same time, it can offer some protection from being sued.
There are two types of privilege; absolute and qualified.
Absolute privilege
Absolute privilege means that any action for defamation is barred, no matter what the comment is. Unfortunately it is quite limited for journalists to use. Within Parliament, MPs are able to say what they like, without the risk of defamation. Only through Parliament published reports (Hansard - the Official record of the House of Commons and House of Lords) is it possible to report every comment, malicious or not and not run the risk of libel. Even if a journalist is commenting on what has been debated in the House of Commons, they are only covered by qualified privilege.
The only time a journalist is covered by absolute privilege is when they are reporting court cases or tribunals, as what is said in court is often very defamatory. Without absolute privilege the media wouldn't be able to report about it at all. It is only if a hearing is held in private that it doesn't apply. There are specific guidelines on what must be included in court reports.
Reports must be fair - when reporting, you must make a summary of both sides, not just one. They must also be weighted equally on both sides. Mr Justice Eady stated in 2006 (Bennet v Newsquest) that a report 'must be fair overall and not give a misleading impression...omissions will deprive a report of privilege if they create a false impression of what took place'.
Reports must be accurate - you must report EXACTLY what is said in court, not adding anything or taking anything away from what someone says. If there is an allegation, you should state the person who is making the claim as well as what they say. This way you cannot get into trouble for making it sound as a factual statement.
Reports must be contemporaneous - in the Defamation Act 1996, it says that contemporaneous reports are 'as soon as practicable'. For a daily newspaper, this would need to be the next day, however for a weekly newspaper it would mean the next week. It should be the next issue of the publication.
Qualified Privilege
This is more day to day things encountered by journalists. It applies to reports of court cases, public meetings, council meetings and police statements. To ensure you are covered by qualified privilege, the reports need to be fair (balanced on both sides), accurate, without malice and on a matter of public concern.
There are two levels of Qualified Privilege:
- With or 'subject to' explanation or contradiction
Public meetings - if something defamatory is said in a public meeting and you get the other side, you can run the story. At the same time it must still be without malice and have public concern in mind. Public meetings include local councils and committees, tribunals, commissions and inquiries.
Associations have a different status (e.g. GMC, FA). They would usually have a hearing in private and would then come out with their judgement. Therefore, findings or decisions by the association arecovered by qualified privilege, but proceedings are not.
- 'Without' explanation or contradiction
Public proceedings in a legislature anywhere in the world
Public proceedings in a court anywhere in the world
Public proceedings of a public inquiry anywhere in the world
Public proceedings of an international organisation or conference (Individual interviews must take place in that venue)
Public meetings
Public meetings are discussions of public concern, and the admission can be general or restricted. Up until 2000, pressers (press conferences) were not seen as a public meeting. As a result of the McCartan Turkington Breen v Times Newspapers Ltd (2000) appeal, the House of Lords ruled that press conferences were protected by qualified privilege. In the case, originating from a meeting organised by campaigners for the release of a British soldier, Lee Clegg, the Times reported defamatory comments about the solicitors who represented Clegg. The solicitors sued the newspaper over the report. A written press release was also made available to the press, but it wasn't read out aloud in the proceedings, although referred to orally by one of the speakers during it. Lord Bingham ruled that the press representatives were like the 'eyes and ears of the public' and that the newspaper was covered by qualified privilege, as were the written handouts, also part of the public meeting.
A full report of the hearing can be found at
http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd001102/turk-1.htm
Remember: there are risks of live broadcasts of public meetings, it is generally a good idea to put a delay in.
Also, there is NO PRIVILEGE outside of main proceedings.
If in court someone shouts out from the gallery, it is possible to report it if the comment isn't defamatory (this would then be reported as ' a member of the gallery shouted out as he was taken away', as this gives an accurate report of the atmosphere inside the court).
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