Defamation: Publication and Defence of Privilege

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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.

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.

Privilege

In certain circumstances, the publication of statements complained of may attract one of the following defences:

  1. Absolute Privilege; and
  2. Qualified Privilege.

These types of privilege will be considered in further detail below.

Absolute Privilege

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:

  • In the course of judicial proceedings (i.e. Court or Tribunal cases);
  • By any Member of Parliament;
  • In the fair, accurate and contemporaneous reporting of any judicial proceedings (section 14 of the Defamation Act 1996 and section 7 of the Defamation Act 2013);
  • In communications between a solicitor and their client;
  • By one officer of state to another in the course of their official duties;
  • In reports of various statutory officers or bodies; and
  • In the course of other proceedings having judicial characteristics.

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

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.

Statutory 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:

  • Reports of proceedings in public of a legislature or before a court anywhere in the world;
  • Reports of proceedings in public of a person appointed to hold a public inquiry;
  • Reports of proceedings in public anywhere in the world of an international organisation;
  • Copies of or extracts from any register or other document required by law to be open to public inspection;
  • Notices or advertisements published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world;
  • Copies of or extract from matter published by or on the authority of a government or authority performing governmental functions, which includes police, local authorities and councils; and
  • Copies of or extract from matter published anywhere in the world by an international organisation or an international conference.

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.

Common Law Qualified Privilege

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:

  • That the communication has been made in circumstances where the person who makes a communication has an interest or duty to make it to the person to whom it is made, and that person has a corresponding interest or duty to receive it.
  • That there is no evidence of actual malice, i.e. the statement is not made to fulfil a relevant duty or serve a relevant interest.

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 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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