Media Law 4 - Privilege

In our fourth lecture on media law, as the title suggests we looked at privilege. This is one of the main defences we as Journalists have against defamation as it is a protection that makes you exempt from law in some way. The Queen for example has absolute privilege. She can do whatever the hell she wants and that's fine by us as loyal subjects, in fact, it's the law that it's fine. Journalists aren't so lucky but any type of qualified privilege (there are two types, Statutory and Common law) is a better defence than no privilege. The main defence to Libel is of course justification as we explored last week, i.e. the defamatory comments were true and you can prove it.


Often Journalists seem to think that being coy about what you really mean in an article defends you from defamation but often the innuendo is worse than ordinary defamation; it shows you have no defence because you are admitting something is defamatory. Defamation really comes from impression though. Using an example from the lecture where an article inside the Daily Telegraph was advertised on its front page with a headline that suggested the Bishop of Canterbury was tearing down the Church by placing his picture next to the offending headline. Sometimes though you can escape libel action through the defence of fair comment, opinion if you like which is well protected in section 10 of the Human Rights act. We live in a free country and can therefore express any opinion but you always have to think about what is fact and what is comment.


Back to Privilege:
As stated earlier, privilege means you are exempt from the law in some way. For journalists, this often means being exempt from libel law which is brilliant but you can only have privilege in narrow circumstances. For Statutory Qualified Privilege to apply, it needs to be reporting in court as it's OK to libel people in court; as long as you have your shorthand. Anything said in court can be reported no matter how libellous or defamatory. The example we had was of a case (coincidentally played out in Winchester Crown Court) where a paedophile ring had finally been ended by the final persons conviction. The article was written in The Sun newspaper and had lines in the article calling those convicted 'sick' and 'evil'. First of all, this is defamatory because it lowers their reputation in the minds of right thinking people, causing them to be shunned, etc, etc. Either way, the story is defamatory but the Journalist cannot be sued for libel because it was said in court and (possibly more importantly) because they also have the defence of Justification, most people would term them sick for what they did and their conviction for paedophilia is a statement of fact before it is anything else. We can report anything in the courts but when it comes to the article, we lose our right to privilege if our comments come from malice, the big M which takes away many of our rights as Journalists. Big tip coming up. Stay away from malice!!!

You have to be careful even then in reports where you think you have privilege. Often the smallest detail can mean you end up libelling someone else with a confusion of words and their exact meaning or worse; a confusion of identity. This makes positive identification very important, you have to properly identify the 'evil' paedophile or suddenly you've got a bunch of other people with the same name who you have accidentally libelled. The report on the paedophile conviction named a 'Tracy Dauber, 44', but another completely oblivious Tracy Dauber, 44, could suddenly start getting connected to this case, purely by their name. Fortunately this wasn't The Sun's first time out so they supplied a photo with the article, hopefully negating any possibility of accidental libel.

Qualified Privilege is difficult to get and just as difficult to keep. You only have it in certain circumstances and if your report isn't fast, accurate and fair; you lose it. If the story isn't in the next available edition then Qualified Privilege is lost and this goes for Court Reporting as well.

'You are the eyes and ears of the public' - Justice Eady

You need to have the story out immediately with no errors, even trivial errors. The errors will make you lose your privilege as they could change things completely, (Tracy, Dauber 44 is a convicted paedophile. Tracy Dauber, 34 might run a care home). To keep it fair is the most difficult. Fast, easy, get the report out the next day; accurate, just don't make any mistakes, I'm begging you not to make any mistake; but fair is tricky. Really it comes down to the usual, keep it without malice and you should be fine. You also can't do a report if you have a vested interest in the case, (i.e. it's a friend or family member). 'The case continues' or 'they are pleading not guilty' has to be in there somewhere or it loses privilege for being unfair. No matter whether the prosecution was the only person who talked throughout the day, it needs 'the case continues' or else you are being biased and libellous. If in doubt, consult the Ten Point Test, (Reynolds Test) and make sure you go to the best possible source for information, most people are lying to you; you have to verify the information or else you wont get common law Qualified Privilege. End of.

Tune in next time for more 'Tales of Journalism Law!!!'