01 October, 2021
One of the key elements of defamation is the publication of statements complained of. However, depending on the nature, extent and the audience of such a publication may pose problems for a claimant to bring a claim for defamation.
Continuing on from the recent article in relation to the statutory defences to a defamation claim, this article now focuses on the defences of privilege and publication.
As covered in our earlier article a claimant in defamation proceedings must establish that the words complained of are published to a third party and that the Defendant published or is responsible for publications of the words complained of.
In order to be successful, the claimant will most likely have to show that there was a substantial publication, and that the publication was not limited in extent. If a publication is to a limited number of people, or made in particular circumstances such as to 3 people in a private setting, then it is likely that a defendant to a defamation action will argue that as the publication was so limited, that no serious harm has or is likely to occur.
As such, unless claimants can prove that the nature, extent and audience of a publication, or republication, is substantial, then it is very unlikely that they will be successful in bringing a claim.
In certain circumstances, the publication of statements complained of may attract one of the following defences:
These types of privilege will be considered in further detail below.
Absolute privilege forms an absolute defence to a defamation action where statements are made in sufficiently important circumstances so as to preclude any statement made being found as defamatory. Such circumstances include statements made:
These occasions attract absolute privilege to allow those people to speak freely in the course of Court proceedings or their duty, so as to not open them up to the prospect of defamation proceedings.
Qualified privilege is available as a defence to a defamation action in circumstances where the publisher had a legal, social or moral duty or interest to make the statement. There are two types of qualified privilege: Statutory qualified privilege and Common Law qualified privilege.
A publication of any report or other statement only attracts statutory qualified privilege where the publication is made without malice (section 15 of the Defamation Act 1996).
The circumstances in which qualified privilege applies are covered in Schedule 1 of the Defamation Act 1996, include:
Further, statutory qualified privilege also applies to statements which are published at a general meeting of a UK public and listed company, or which the defendant was requested to publish a reasonable letter or statement by the claimant and in which the defendant refused or neglected to do so.
As a general rule, the defence of Common Law qualified privilege requires a reciprocal relationship of duty and interest between publisher and publishee, for instance, the relationship between employer and employee.
Communications where there are common and reciprocal interests at play can also give rise to common law qualified privilege, such as communications between employees or shareholders of a company.
Unlike statutory qualified privilege, there is no exhaustive list of circumstances which attract common law qualified privilege, but the principle features of the defence are as follows:
In summary, if a statement is published to a limited audience or if made in certain circumstances, most notably in the process of Court proceedings, then a defendant may be able to fully defend any defamation action which is brought against him. Where a claimant is required to prove the extent of publication in order to bring a successful claim, a defendant may wish to show a lack of publication in order to adequately defend a defamation claim which has been brought against them. Further, a defendant who has made a statement in privileged circumstances will be required to prove the circumstances which gave rise to that privilege.
For more information contact Andrew Wilkinson in our Business Dispute Resolution department via email or phone on 01772 220168. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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