Law - 20 October

This week we learnt more about Qualified Privilege. I mentioned the basics of this last week as a defence against defamation.

Qualified privilege is when what you have written has been said in court. If you are going to report something defamatory and plan on using qualified privilege as your defence you must report fast, accurately and fair. The offended person does not have to show that they have been harmed but do have to show that they have suffered.

Common Law Qualified Privilege is a form of the above but it does not have to be said in court. This can be used is the following conditions have been met. The public need to hear about it, this is something that you do not need to prove. It has to be without any malice at all. The article itself and EVERYTHING you have ever written before. You should never write with malice anyway but if you have any article with malice in, you can not use common law qualified privilege. Again, everything must be fast, accurate and fair; and, for good measure there must be reasonable suspicion.

Malice can expressed or implied. Either way is bad for journalism. No article you write should ever have malice in it. Unless you write comment pieces you should never have your own opinion in your articles anyway. When implying malice you are again, putting your own opinion in the piece which should not be done. To have common law qualified privilege you must show no malice and have no malice in any piece you have ever written/produced.

The Reynolds Defence

This is a list put together by Lord Nicholls that journalists must adhere to if they want to use the defence when publishing defamatory material. Bearing in mind that the piece in question is of public interest and is responsible journalism.

This defence came about when the Sunday Times was sued by Albert Reynolds; the former head of the Irish government. He sued because he believed that the story had deliberately and dishonestly misled the country's parliament.

In the defence of the Sunday Times they said that they were keeping within article 10 of the European Convention on Human Rights and that in public interest in political issues and the conduct of elected politicians should be protected by qualified privilege.

The Sunday Times lost but the following defence was put together to allow future publications to publish defamatory articles in the name of public interest.

1. The allegation must be true and the seriousness of the allegation.

2. The extent to which the information is a matter of public concern.

3. The source of the information. No one with previous anger against the accused or are being paid for the story.

4. All the steps that you've taken to verify the information. This must be recorded information.

5. The status of the information. If it is all ready subject to an investigation this must be respected.

6. The urgency of the matter. Can not be old news.

7. Approach the claimant for comment.

8. Whether the article contained the gist of the claimants side of the story.

9. The tone of the article. The newspaper can raise queries and investigations.

10. The circumstances of the publication, including timing.

This has been criticised as being too narrow by judges in the House of Lords.

For more information about the Reynolds VS The Sunday Times please visit, http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01.htm

Research from McNae's essential law for journalists.

Picture from: Mail Online