Law Semester 2: Defamation and the Defence of Privilege

The law recognises that there are occasions when the public interest demands that there shall be complete freedom of speech without any risk of proceedings for defamation, even if the statements are defamatory and even is they are untrue.

There are two types of privilege. Absolute, and Qualified.

Absolute Privilege is a complete defence - it doesn't matter if the defamatory statement is untrue, and it doesn't matter if it's said with malice.

The only time journalists have Absolute Privilege is when they are reporting the courts in the UK courts, the European Court of Human Rights, the European Courts of Justice and war crimes tribunals.

There are three basic requirements according to the defamation act 1996, reports must be fair and balanced, they must be accurate and they must be contemporaneous.

Fair reporting needs to represent both sides and not give undue weight to one side or the other. If there are inaccuracies protection exists as long as it is still fair overall and not misleading (Bennett v Newsquest). If it's unfair then you would lose qualified privilege. (Daily Sport 1993)

Journalists must include rebuttals where needed. 
Allegations need to be attributed or sourced because reporting them as fact would be inaccurate.
Identities should not be confused, ie. witnesses must not become defendants by mistake as this leaves the publication without a defence. Therefore journalists must be accurate with IDs, age, address, occupations etc.
This is quite a frequent problem as journalists are competing with each other and are therefore under a lot of pressure. Notes can easily be mixed up, so be aware.
Journalists must be precise with the charges, and not give the impression of guilt if the person is cleared. (Hendon Times 1993)

For absolute privilege to apply, reports must be contemporaneous ie printed at the first available opportunity.
If the reporting of the case if postponed by an order of the court, when it is finally allowed to be published that can be treated as contemporaneous.
If you do not publish immediately, you lose qualified privilege. (unless reporting was postponed by the court).

Additional material added to a court report is not covered by absolute privilege - eg background material, or comments shouted from the public gallery.

Discussion of 'Rape Story' in the Metro today;"A clubber who cried rape after dragging a man into public toilets for sex has been spared jail."Today in the metro newspaper a photo was placed next to this story, of a mother and baby. The photo belonged to a different story, however this women can sue for defamation and would probably win. Juxtaposition is very important in publishing. Be aware. 

Documents "Made available in court" are covered under the Defamation Act 1996, including court lists.
Maliciously made reports defeat the defence of qualified privilege, but not absolute privilege.

INQUESTS

Inquisitional courts designed to get answers on sudden and unnatural deaths and the ownership of treasure. They are not accusatorial - a coroner can lead witnesses theough questions and family members and other interested parties can ask questions.]

The purpose of inquests is always to find out -
Who the deceased was
How, when and where they met there death
The particulars to be registered (ie the verdict)

Quite often there is a narrative verdict which can include: 'misadventure', 'suicide', 'accidental death' etc.

Inquests are not allowed to apportion blame but can find neglect if there is a failing in the system (court of appeal 2002).
If a crime is involved, inquests are usually opened and adjourned.
Inquests held into all deaths of unnatural or violent nature abound.

Most inquests are done with coroners, however there are some on which a jury sits.
Industrial deaths, and poisoning cases, disease inquests (like rabies), person dying in custody, police dying whilst on the job are presided over by juries.

Juries must also be called in the case of an accident 'blackspot' because of the public safety angle.

Rule 37 of the Coroner's Rules, evidence can be taken in documentary form rather than oral form. Traditionally suicide notes have been treated like that. Usually this happens where evidence is unlikely to be disputed.
However under rule 17 cases should be heard in public.

Some coroners hate returning a suicide verdict, and will instead leave an open verdict.

There is no direct right of appeal to an inquest, however, applications can be mae to the high court to quash a verdict and a fresh inquest ordered but it needs the consent of the Attorney General.

Inquests traditionally were originally held into the finds of objects that are over 300 years old and contain substantial gold/silver or other valuables where the owner cannot be traced.
The Treasure Act (1996) - finders must report finds within 14 days. If a museum wants to have the find - and pay market value - an inquest is held and the coroner will decide if it is treasure.