Privilege

Qualified Privilege

Where qualified privilege applies, a statement which is honestly made in good faith enjoys a defence to an action for defamation. The protection is lost if the statement is made in bad faith or maliciously. In broad terms, this refers to a misuse of the privilege.

Qualified privilege may apply in many diverse circumstances.  The common thread is that there is a public interest in the expression and publication of the statement concerned. The privilege arises in particular circumstances or on particular occasions.   In most cases, there are conditions applicable to the availability of the privilege.

In the broadest terms, qualified privilege is available where the person making the statement has an interest or duty to communicate it to a person who has a corresponding duty or interest in receiving it.  The duty may be legal, social or moral.  The requirement that it be made to the party with the corresponding duty or interest is a critical condition to the availability of the privilege.

The scope of qualified privilege has been expanded by the courts in recent decades.  See the separate sections in relation to the so-called “public interest” privileges, evolved by the courts in the UK, which are supported by Irish case law and the Defamation Act, 2009.


Statutory Expression of Qualified Privilege

The Defamation Act 2009 seeks to preserve and codify existing common law principles.  It does not attempt to freeze them.  It expressly provided that the defences of absolute and qualified privilege which existed prior to the legislation, continue to exist.  This approach differs from other aspects of the legislation, which codify defences and abolish the corresponding common law defence.

The legislation, having confirmed the continuation in force of pre-existing position, provides that there shall be a defence to an action for defamation where the defendant proves that

  • the statement was published to a person or persons who had a duty to receive or an interest in receiving the information in the statement, or
  • the defendant believed upon reasonable grounds that the said person had a duty or interest; and
  • the defendant had a corresponding duty to communicate or interest in communicating the information to that person or persons.

The person making the statement must believe bona fide, in the truth of what he is saying.  He must believe that he has an interest in making the statement.  He must believe that the recipient has an interest in receiving it.  He must not be motivated by improper motives or act in bad faith.


Nature of the Duty and Interest I

A duty is defined to mean a legal, moral or social duty.  An interest is defined as a legal, moral or social interest. The defendant must show that he has a legal, moral or social duty to make the statement to the recipient, who has the corresponding and reciprocal duty or interest in receiving it.

A legal duty may, for example, be based on a person’s role, a contractual relationship, statute or his position in a regulatory authority.  The classic examples are complaints to the police and other authorities, about criminal conduct and regulatory breaches. The duty may arise out of an employment, position or an office.  It may arise out of a circumstance, such as where a person has been criticised, or themselves defamed and where a response is appropriate.

Moral and social duties are difficult to define. The courts have not closed the categories of cases in which the privilege will be recognised.  The broad theme is that there must be some legitimate interest on the part of the maker and recipient.


Nature of the Duty and Interest II

Persons may be in a relationship, formal or otherwise, such that one might seek to guide or protect the other.  The court may be prepared to find a moral and social duty to give warnings in such circumstances, such that privilege may attach.

Another number of cases have involved accusations of theft.  A person may have a legitimate interest in protecting his property, and in some cases, that of another.  Reports by one party to another of suspected theft in relation to employees, guests or others may be privileged.

A response to an attack or criticism may enjoy qualified privilege. The response must be proportionate, relevant and made to a proper person.  In broad terms, a person has a right to protect his reputation, proprietary or financial interests, where they have been jeopardised.  A certain margin of error is permissible.  The response must be proportionate and not excessive. The privilege defence is not available where the charge or criticism made, is known to be true.


Losing Privilege

Where irrelevant material is introduced, outside the scope of the interest and duty to communicate or receive the communication, the protection may be lost. Some courts have taken the view that the inclusion of irrelevant material should be judged from the perspective of malice and good faith. Where the court finds that the defendant must realise that a particular statement is irrelevant to the occasion of privilege, it may decide that he is not acting in good faith.

The defence should not fail by reason only of the publication of the statement concerned to a person other than an interested person, if it is proved that the statement was published to that person because the publisher mistook him or her for an interested person. The fact that persons incidentally overhear the communication will not necessarily deprive it of the privilege. Provided there is no malice, a statement made in front of others, which could have been made in private, may enjoy the privilege

Where a defamation action is brought against more than one defendant, the failure of the defence of qualified privilege in relation one of the defendants will not cause it to fail in relation to another defendant, unless the latter is vicariously liable for the acts or omission of the former


Lost by “Malice” / Improper Motive

The defence of qualified privilege is not available where the claimant proves that the defendant has acted with malice. The Defamation Act confirms that the defence of qualified privilege is not available if, in relation to the publication of the statement, it is proved that the defended acted with malice. The absence of good faith is malice in this context. Malice refers to bad faith or improper motive.

An improper motive may be imputed where the defendant seeks to fulfil another purpose, which is not legitimate in the circumstance. The defence is relative in nature.  One person, in the particular circumstances, may be acting in good faith whereas another, in apparently similar circumstances, may act in bad faith.

The defendant may make an honest mistake about the interest or duty of the recipient in receiving the statement. Honest belief is central to the concept of malice. That a statement is made recklessly, may tend to show the absence of honest belief. Equally, where the speaker is indifferent as to the truth or otherwise of a statement, he may be held to act in bad faith.


Types of Statement Potentially Enjoying Privilege

The Defamation Act provides a schedule of types of statements, which may qualify for privilege Part One of the schedule sets out types statements which may enjoy qualified privilege, without explanation or contradiction.  Part Two sets out types of statement which may attract privilege, subject to explanation or contradiction.

There is a defence to defamation to prove that the statements are of the type mentioned below, where it is contained in a report, extract or summary referred to therein or contained in a determination, referred to below. This does not protect the publication of a statement which is prohibited by law or which is not of public concern, where it publication is not for the public benefit. Other privileges, apart from those below may apply.

The report must be fair and accurate.  Where a court case lasts a number of days, a single day account of the evidence of one side is permitted. It must not be motivated by malice. If the author goes beyond fair and accurate reporting and adds other material which is not relevant, the privilege may be lost. A partial publication, which gives a false impression, is likely to fall outside the privilege.

A publication which would otherwise be privileged may lose that privilege if it is not of public concern and publication is not for the public benefit.


Categories of Statement

The categories covered by the above privilege, include those set out below;

  • a fair and accurate report of any matter parliamentary or judicial proceedings to which absolute privilege applies;
  • a fair and accurate report of equivalent proceedings outside the State and Northern Ireland;
  • proceedings other than court proceedings presided over by a judge in Northern Ireland;
  • proceedings of the parliaments of other states;
  • proceedings in public of any body established by law to conduct a public inquiry on a matter of public importance;
  • proceedings of a foreign legislature or equivalent body above conducting an inquiry on a matter of public importance;
  • proceedings of international organisations of which the State or government is a member, and which are in the interest of the state;
  • International conferences, at which the State is represented
  • registers kept in accordance with any law which are open for inspection to the public;
  • copies or summaries of any notice or advertisement published under the authority of a domestic court or EU court or judge or officer of such court;
  • summaries of any notice or other documents issued for public information on behalf of governmental authorities;
  • summaries or notices of documents issued by or under the authority of an Oireachtas Committee;
  • determinations of the Press Ombudsman and Press Council and statements published in accordance with them;
  • statements made during the hearing of a complaint to the press, ombudsman or an appeal from it;
  • statements made in accordance with the requirement of law, whether or not the person is the author of the statement

A publication which would otherwise be privileged may lose that privilege if it is not of public concern and publication is not for the public benefit.


Right of Explanation and Contradiction

In the case of certain of the categories of report, privilege may be lost if the claimant has requested to make a reasonable statement by way of explanation and contradiction and the defendant has failed to do so, at all or has done so in a manner that is not adequate or reasonable in the circumstances.

The following categories of statements and reports, are subject to the provisions in respect of explanation and contradiction. These include

  • findings of associations, committees and bodies whether incorporated or not in the EU or state relating to members of the association or person under its control;
  • public meetings held for a lawful purpose and for discussion of matters of public concern, whether or not the public is able to attend or restricted;
  • meetings held in the State or EU of any company established by statute or charter;
  • meetings of sittings of the HSE and corresponding bodies in other EU states;
  • Press conferences convened by a body to which this part of the legislation applies;
  • the organisation of public meeting above to give an account to the public, of proceedings or meetings;
  • a fair and accurate report of a report which defence of qualified privilege would itself apply;
  • A fair and accurate report on the ruling or investigation and others made by the Irish Takeover Panel.

References and Sources

Legislation

Defamation Act 2009

Circuit Court Rules (Defamation) 2009, S.I. No. 486 of 2009

Rules of the Superior Courts (Defamation) 2009, S.I. No. 511 of 2009

Irish Books

Information Technology Law in Ireland   2 Kelleher & Murray       2007

Tully Tort Law in Ireland 2014

Defamation Law Cox & McCullough 3ed 2014

McMahon & Binchy Law of Torts               4ed        2013

Maher  Defamation law                2011

EU and UK Texts