Appendix 5 - Defamation and Qualified Privilege
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Guidance Note
1. Speaking at Meetings and in Public - Defamation
and Qualified Privilege
Except for the limited circumstances in which
the press and public are excluded, the Council conducts its
meetings in public. It is therefore important that Members
appreciate that statements made at meetings of the Council, the
Executive and all other Committee meetings are subject to the laws
of defamation.
This note aims to explain:
- what is defamation;
- the consequences of a defamatory
statement;
- the defence of Qualified Privilege (and other
defences);
- defamation of the Council.
2. What is
Defamation?
A person is entitled to his/her reputation and
good name: particularly if they hold public or professional office
and their position and reputation depends on a large degree of
public trust and confidence. Accordingly, communication of a
matter which is untrue and likely to disparage substantially a
person's reputation is, on the face of it, defamation.
Defamation is defined as the
publication to another person of an oral or
written statement which:-
- exposes a person to hatred, ridicule or
contempt; or
- causes him/her to be shunned or avoided;
or
- has the effect of lowering his/her reputation
in the estimation of right-thinking members of the public
generally; or
- injures him/her in their office, profession
or trade.
3. Distinction Between Libel and
Slander
A defamatory spoken word or gesture will
usually amount to a slander whereas a libel may be contained in a
written or printed statement, or in a painting, talking film,
caricature, advertisement or any disparaging object. Reading
out a defamatory document in a Council or Committee meeting would
not be slander but the publication of a libel. A defamatory
statement broadcast on radio, television or the theatre is treated
as the publication of a libel and not
slander.
4. Consequences of a Defamatory
Statement
Defamation is unique in civil law in that it
may be tried by a Jury. The Jury can award general, actual or
aggravated damages.
The level of damages may be reduced if any of
the following can be shown:-
- Lack of deliberate
malice.
- Provocation - i.e. if the
defamatory statement is made as a direct response to provocative
statements made by the person alleging defamation.
- Mere repetition - It is
considered less malicious to repeat rather than originate a
defamatory statement.
- Apology - If the defamor can
show that he made or offered an apology before the commencement of
the action or as soon afterwards as he had an opportunity of so
doing.
An Injunction may also be granted to prevent
publication.
5. Defences to an Action for
Defamation
It is a complete defence to an action for
defamation to show that it was made on a privileged occasion.
Privilege may be absolute or qualified -
(a) Absolute Privilege -
attaches to Parliamentary and Judicial proceedings and Reports. It
does not attach to Council meetings, even when functions are
exercised which attract an obligation to act judicially and fairly
(e.g. in licensing matters). Communications between the local
Ombudsman and the Council are absolutely privileged.
(b) Qualified Privilege
- exists where
- the person who makes a communication has an
interest or duty (whether legal, social or moral) to make it to the
person to whom it is made; and
- the person to whom it is made has a
corresponding interest or duty to receive it; and
- the person who makes the communication is not
motivated by malice.
Qualified Privilege will frequently attach to
statements made in Council and Committee whether contained in a
report or spoken. It will be a complete defence to prove that
the person had a duty or interest to make the statement, that there
was a corresponding duty or interest on the part of the recipient
to receive it and that he was not motivated by malice.
So long as a person believes in the truth of
what is said malice cannot normally be inferred. Malice may
be inferred however, if it can be shown that he was motivated by a
purpose other than his interest or duty to make the
statement.
Examples of improper purposes or motives may
include giving vent to personal spite or ill-will.
The requirement for a duty or interest to
receive a statement has the effect of greatly limiting the extent
of publication if the defence is to be relied upon. For
example in the case of De Buse -v- McCarthy (1942) the Town Clerk
of the Borough of Stepney sent out a notice convening a meeting of
the Council to consider a report of the Committee regarding the
loss of petrol from one of the Council's Depots. Included in
the notice was a complete copy of the report of a Committee setting
out its defamatory conclusions as to who in its opinion was
responsible for the loss of petrol. In accordance with
established practice a complete copy of the notice was sent to the
public libraries in the Borough. In an action for defamation
from the person named in the report against the Town Clerk for
publication of a libel, the Town Clerk raised the defence of
Qualified Privilege. He maintained that he was under a duty
to circulate the report to Members, that Members had an interest or
duty to receive it and that he was not motivated by malice.
The Court held that the extent of publication of the report
destroyed the privilege otherwise attaching to it. Ratepayers
had been able to read the report in the public library and there
was no interest or duty on their part to receive a report which was
only a preliminary stage in an investigation.
Other points on Qualified Privilege to note
are:-
- the disclosure of defamatory material
concerning past events to new Members of a Council will not be
privileged unless it is reasonably necessary to enable them to
perform their duties;
- under the Public Bodies (Admission to
Meetings) Act 1960 and the Local Government Act 1972 the press and
public must on request be allowed access to or in certain
circumstances be supplied with the agenda and certain other
documentation relating to matters to be considered by the Council
or a Committee. These Acts provide that where such matter is
made available to the Press or to the public, the agenda and other
documents are privileged unless publication is proved to have been
made with malice. However, further publication by the press
and/or public will not be privileged unless it satisfies the usual
conditions for Qualified Privilege to attach.
Other Defences include:-
(c) Justification - i.e.
the defamatory statement is true and if so provides a complete
defence.
(d) 'Fair Comment' -
This defence is intended to allow any person (but in particular the
press) to express their views honestly and fearlessly on matters of
public interest even though that may involve "strong" criticism of
the conduct of persons in the public arena or who hold public
office. In this connection the administration of local
affairs by the Council is a matter of public interest.
(e) Unintentional
Defamation - In cases of unintentional and non-negligent
defamations, a defendant may avoid liability to pay damages if he
is willing to publish a reasonable correction and apology and to
pay the plaintiff's costs and expenses reasonably incurred as a
consequence of the publication in question (e.g. costs of
consulting a solicitor, obtaining Counsel's opinion etc.)
6. Defamatory Statements Against
the Council
The Council has a reputation which it is
entitled to protect. In the case of Bognor Regis Urban
District Council -v- Campion (1972), the Council successfully
brought an action against a ratepayer who had published a leaflet
defamatory of the Council. The right of a local authority to
bring an action for defamation has been confirmed in the case of
Derbyshire County Council -v- Times Newspapers Limited (1991).
7. Summary and
Check-List
Ask yourself the following questions before
speaking in a Council or Committee meeting in a manner which could
be construed as defamatory. If the answer to any question is
"no" - do not speak unless you are absolutely sure of your
facts. This will ensure that the defence of Qualified
Privilege is not lost, or if it is lost or not available that the
defences of justification or fair comment will be available.
- Do I have an interest or duty to make the
statement?
- Is there a corresponding interest or duty on
the part of other Members to receive it?
- Is there an interest or duty on the part of
the press and public to receive it?
- Do I reasonably believe in the truth of what
I am about to say?
- Am I motivated to make the statement only by
my interest or duty to make it?
Remember - before
speaking:-
- Check your facts.
- Examine your motives.
- Remain courteous - even under
provocation.
- Take your own legal advice if in any
doubt.
NOTE: If you
do not believe that there is an interest or duty on the part of the
press and public to hear a statement it may be possible to propose
a motion to exclude the press and public pursuant to The Local
Government Act 1972 (as amended). The proposed statement
would have to fall within the definition of exempt information as
set out in the Access to Information Procedure Rules as contained
in Part 4 of this Constitution.
Next - Good Practice Protocol for Councillors
when Dealing with Planning Matters
This webpage was updated on
9/29/2010