There are two types of Privilege:
è Absolute Privilege – what is written in parliament, as long as it is Fair, Accurate and Contemporaneous.
è Qualified Privilege – your notes or reporting which can be used as evidence. This is a more day to day defence and more likely to occur in normal situations.
These reports must be Fair, Accurate, without malice and on a matter of genuine public concern. So they can not in any way be small and petty claims.
As per the last few weeks, we were given a scenario that would put into practice the legal theories of which we are currently working with. In this week’s session we were using a scenario of a being at a council meeting and the various quotes from the people involved in the council. We were asked which quotes out of the ones that were used in the scenario would be counted as being safe to use in an article on the council meeting (which revolved around the placement of wind turbines), to which the accurate would be all of the quotes except for the last one, as the last one was taken down outside of the council meeting and contained defamatory statements during a point when official notes were not being taken. Upon being asked who else we would call, it came t light that the person who is in charge of putting up the wind turbines in this fictional scenario is not at the meeting, so what the likely course of action would then be would be to make a call to this person (in this case, Mr John Wagstaff) and put to him the defamatory comment that was made after the official meeting had ended and ask him for any kind of official response to this. Since you are asking him for an official response to an unprintable defamatory comment, his response will be O.K. to be printed as it is an official quote from a source.
There are two levels of Qualified Privilege:
è with or "subject to" Explanation or Contradiction - which means you are obliged to publish any contests on the privilege.
è without Explanation or Contradiction - which obviously means that you are entirely legal in your privilege.
Privilege Part 1:
è The public proceedings in a legislature anywhere in the world.
è Public proceedings in a court anywhere in the world.
è " " of a public inquiry.
è " " of an international organisation or conference.
Privilege Part 2 (more relevant to what we are learning):
è subject to explanation and contradiction.
è public meetings (as in the scenario) - subject to explanation and contradiction, and the area we are most likely to be involved in. - Local councils, committees, tribunals, commissions, inquiries, etc.
è Associations will have different statuses, but will still fall into the same area.
è Findings or decisions are covered as privilege.
è Proceedings in these situations are NOT covered.
"Pressers" are public meetings that are now properly designated as such thanks to the Lords case in 2000 and the case involving The Times and a board of lawyers that means that any notes taken at these can be counted as official notes and therefore privilege. Any written handouts that are given out as well are also counted as privilege and can be used.
Summed up, Privilege must consist of notes and facts that are:
è FAIR, ACCURATE, and CONTEMPORANEOUS.
è WITHOUT MALICE.
è A MATTER OF PUBLIC INTEREST.
è Only if you are GENUINELY FAIR MINDED.
è There is NO Privilege outside of main proceedings!
Interestingly enough, McNae states that “a defamatory matter shouted out in court by someone not part of the proceedings will not count as privilege. But if the shouted comment is by someone who has given evidence as a witness in that case, privilege would protect its inclusion in a court report, provided all the defences’ requirements were met”. Meaning as long as they are part of the actual case that is happening, if someone were to shout out something that could be defamatory or libel you are allowed to take that into your notes and be protected from doing so!
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