Media Law Update (18 Feb): Qualified privilege, Inquests and Tribunals

Personal commentary on qualified privilege, inquests and tribunals:

Privilege offers day to day protection for a journalist in routine activities such as going to public meetings, council hearings, and even conversations with press officers.

The main focus of this week’s blog is to take a closer look at privilege and why it matters. Privilege underpins our ability to report the courts. It allows us as journalists to write or broadcast material which may be defamatory, or untrue, or even both at the same time. It gives us legal protection from being sued and in return we must abide by certain conditions.

The word ‘qualified’ refers to the principle that publication is protected only in certain circumstances and if we stick to certain rules. Journalists must understand clearly when they have the protection of privilege and when they do not.

In 2013, BBC’s Nick Robinson said on air (on the Daily Politics) that an Independent Police Complaints Commission report effectively concluded that three police Federation men ‘lied’ after their meeting with Andrew Mitchell in Oct 2012. It was clearly defamatory for the BBC to broadcast this on air, but they had Qualified Privilege, as the allegation was within an IPCC report.

Qualified Privilege exists as a defence when your report is ‘fair, accurate, without malice’ and on a matter of public interest. In 2001, Dr Grigori Loutchansky, a Russian businessman, won his High Court libel claim against The Times over two 1999 articles imputing possible involvement in the Bank of New York money-laundering scandal and links with organised crime. The case turned into a crucial test of the ambit of ‘Reynolds’ qualified privilege and press freedom. It was held that The Times was under no duty to publish either of the articles and that the defence of qualified privilege was not available.

This case is very interesting when challenging the status of information. In this case, the status of information was low grade, consisting of a report or repetition of allegations, suspicions and claims that investigations had been or were taking place and this imposed a duty on the reporter to proceed with caution.

In the news:

Last year (April 2014), Thames Valley Police had to pay damages to a man wrongly identified as a rapist by both the Oxford Mail and the BBC website. The BBC and the Oxford Mail were able to claim qualified privilege concerning publication of the photograph.

This case poses an important question of responsibility. The BBC and the Oxford Mail took measures to rectify the situation as soon as they were notified of the mistake. However, this story serves as an important message for journalists to always double-check facts and photographs – no matter who your source is.

To round up:

Journalists should aways be careful that although they may have Qualified Privilege in theory, it is possible to fail on tests of fairness or responsible journalism.

Law Notes: Qualified Privilege Inquests and Tribunals

There are two types of Privilege:

  1. Absolute is what we get covering Courts (must be fair, accurate, contemporaneous).
  2. Qualified privilege has as much protection as absolute, but reports must be ‘fair, accurate and without malice’. ALSO matter published must be of public concern.

Qualified Privilege is defined by statute law (Defamation Act 1996 and now expanded by Defamation Act 2013).

There are two levels to Qualified Privilege:

  1. Without ‘explanation and contradiction’: reporting on legislature anywhere in the world (e.g. UK Parliament).
  2. With ‘explanation and contradiction’: reporting on public meetings, police statements, council meetings (with the addition of press conferences in the new Defamation Act 2013).

Absolute Privilege is extended to courts anywhere in the world or established by international agreement (e.g. the International Criminal Court in the Hague). Common law and statutory protections of witnesses and jurors (including section 8 of the 1981 Act) apply to inquest proceedings, as does the ban on photographs, filming and audio recording in courts.

Status of press conferences

  • Qualified Privilege also applies to written material handed out even if it was not read aloud.
  • Verbal comments of press officers.
  • Proceedings and decisions by private associations (e.g. sporting).
  • Live broadcasting of Pressers: Where you think it is likely defamatory statements will be made think carefully about minimising risk.

You may have Qualified Privilege in theory but you may fail on tests of fairness or responsible journalism. Qualified Privilege exists as a defence when your report is ‘fair, accurate, without malice’ and on a matter of public interest. Journalists must be very careful when you report things said outside the proceedings of the event they are covering.

Coroner’s Court

A coroner is appointed to serve a district and must have practised as a barrister or solicitor for five years (in 2013 the government agreed that suitably qualified legal executives could also become coroners). The Coroners and Justice Act 2009 says new coroners must be legally qualified. The 2009 Act has reformed the systems. Districts became known as areas and some were merged to form larger ones.

There are two types of coroner inquests:

  1. To investigate the causes and circumstances of certain types of death.
  2. To decide whether found objects from bygone centuries should be classed as ‘treasure’.

Under the 2009 Act, an inquest must be held with a jury if the senior coroner has reason to suspect that the death falls into one of the following categories:

  1. The deceased was in custody or otherwise in state detention, and the death was either violent or unnatural, or the cause is unknown;
  2. The death resulted from an act or omission of a police officer or member of a police force of the armed services in the execution of his/her duty;
  3. The death was caused by those types of accident, poisoning or disease which by law must be notified to a government department or inspector, such as workplace facilities.

Inquests determine:

  1. Who the deceased was;
  2. How, when, where they came by their death;
  3. Findings about particulars of the death to be registered.

Coroners can hold three types of hearing:

  1. Pre-inquest review hearing
  2. Opening of the inquest
  3. Full hearing

Contempt issues in inquests if reports are not:

  • Fast, accurate and fair
  • Protected from libel by absolute privilege

Non-contemporaneous reports are protected by qualified privilege if requirements are met.

There is no direct route of appeal against an inquest decision, but an aggrieved person with sufficient legal interest in the case (e.g. a deceased’s next of kin can apply to the High Court for judicial review).

Tribunals and Pubic  inquiries:

Tribunals are specialist judicial bodies which decide disputes and make decisions determining someone’s rights. There are more than 70 types of tribunal. The majority rule on disputes between an individual, or a rivage organisation, and a state agency, about issues such as tax obligations, benefit entitlements, or immigration status. The annual workload of tribunals in this ‘administrative justice’ system can exceed a million cases, compared to about 65,000 civil and 200,000 criminal justice cases a year.

If a tribunal is classed as a court, then under the Defamation Act 1996 a fair and accurate media report of its hearings held in public (if published contemporaneously) is protected by absolute privilege, and a non-contemporaneous report is protected by qualified privilege under Part 1 of the Act’s Schedule 1, with no requirement to publish ‘explanation or contradiction’.

In 2009 the High Court ruled that a media account of the proceedings of the Solicitors Disciplinary Tribunal enjoyed absolute privilege (Imran Karim vs. Newsquest [2009] EWHC 3205 (QB), which means that the High Court classed it as a court. But such case law does not exist or is not conclusive for some tribunals. The disciplinary tribunals of some other professions, and other types of tribunal, derive their powers from an Act of Parliament. A media report will be protected by qualified privilege if all the requirements of that defence are met. These include that the report fairly and accurately reflects the proceedings. Another requirement is that, at the request of anyone defamed by the published report, a reasonable letter or statement of explanation or contradiction must be published.

About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
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