Some types of communications fall outside the law of defamation, and the person defamed by such material has no redress under defamation law. We’ve discussed before the challenges faced by anyone attempting to sue for comments that, whilst ostensibly defamatory, are made in the public interest. And we regularly see how defamatory words, for example, made by MPs in the context of parliamentary proceedings, are protected by absolute privilege and cannot be challenged in court. Other defamatory material attracts what’s known as ‘qualified privilege’ offering a lower (but nevertheless significant) level of protection to publishers of defamatory statements. Qualified privilege affects many of our private clients at Nath Solicitors, a leading London defamation law firm. Here we look at how qualified privilege works, highlight a key case in this area, Horrocks v Lowe (1975) and examine how the defence of qualified privilege can be undermined.
Qualified Privilege at Common Law v Statutory Qualified Privilege
The first category of qualified privilege is at common law, providing protection against allegations of defamation including circumstances where the publisher:
- Has a moral, social or legal duty to make a communication and there is an interest in receiving the communication,
- Has a legitimate interest in making a communication to a relevant authority (such as reports of misconduct) and there is interest in receiving the communication, or
- the publisher replies to an attack on themselves in a proportionate manner.
The second category is statutory qualified privilege, which provides protection against allegations of defamation in circumstances listed under the Defamation Act 1996. To qualify for the privilege the publication must satisfy the conditions that it was made:
- In good faith
- Not prohibited by any law
- As a matter of public concern and public benefit
- Fairly and accurately
In certain circumstances, to avail of the defence the publisher must not have refused to publish a reasonable statement of explanation if requested to do so.
Can I Lose the Benefit of Qualified Privilege?
Qualified Privilege is a valuable right – it’s a significant way to protect an individual’s freedom of speech. However, even in circumstances where qualified privilege may exist, the privilege can still be lost where it can be proved that the defamatory statements were influenced by malice. This was the issue raised in the case of Horrocks v Lowe. The judgment in that case, although now almost 50 years old still resonates with defamation lawyers and defendants today.
In Horrocks, the plaintiff and the defendant were both members of separate political parties on their town council. One was Labour, the other Conservative. In an open council meeting regarding land purchased by a company of which the plaintiff was a shareholder, the defendant made the following comments:
| “I don’t know how to describe his attitude whether it was brinkmanship, megalomania or childish petulance … I suggest that he has misled the committee, the leader of his party and his political and club colleagues some of whom are his business associates. I therefore request that he be removed from the committee to some other where his undoubted talents can be used to the advantage of the corporation.” |
As a result of the comments, the plaintiff brought defamation proceedings against the defendant. He in turn claimed justification and fair comment on a privileged occasion. Responding to this defence the plaintiff argued that the defendant had been motivated by express malice so that the protective cloak of qualified privilege was lost.
The judges found that the statements made were defamatory as the plaintiff had done nothing which could have justifiably been the object of such criticism. However, they were required to further assess:
- Whether the defendant had the honest belief that what he was saying was true; and
- Whether he had used the privileged occasion for a purpose other than that for which the occasion was meant for.
Honest Belief
In his Appeal Court judgment, Lord Diplock examined the meaning of ‘honest belief’ in some length. In his view, honest belief does not necessarily have to be a reasonable belief as long as there is no evidence of recklessness on the part of the defendant. In this case, Diplock found that the defendant was of the honest belief that his statements were true. In addition, the defendant continued to believe that his statements were true throughout trial, supporting his argument of honest belief throughout.
Was the Privileged Occasion Misused?
Honest belief in the truth of a statement will not stop the statement from being deemed malicious (and therefore defamatory) if the defendant misuses the privileged occasion. In the circumstances of the Horrocks case, the judge found that because others in the defendant’s party had similar views about the plaintiff the defendant was entitled to hold the belief that he had. On the facts therefore it was reasonable for the defendant to come to the belief that the plaintiff should not be part of the committee due to the conflict with his business interests. As a result, the court decided that the defendant was not abusing his privilege on this occasion.
Comment
The Horrocks case set a strong precedent for individuals relying on the defence of qualified privilege.. As was made clear in the judgment:
‘Members of a local authority should be able to speak their minds freely on a matter of interest in the locality. So long as they honestly believe what they say to be true, they are not to be made liable for defamation. They may be prejudiced and unreasonable. They may not get their facts right. They may give much offence to others. But so long as they are honest, they go clear.’
Once honest opinion is established the motive with which the defendant on a privileged occasion makes a defamatory statement becomes crucial.
Contact Us
For advice on defamation and reputation management please contact Shubha Nath at Nath Solicitors on 0203 983 8278 or get in touch with the firm online.
