Qualified Privilege

There are three main defences that can be used in court against accusations of a defamatory statement. The first of these is justification, a difficult defence that involves proving that your story is conclusively true. The second is fair comment. This is a reasonably well protected defence which basically means that it must be proved that the possibly defamatory statement was clearly an opinion and was not presented as fact. A journalist should chose their words very carefully to ensure that there is an obvious distinction between fact and opinion - particularly if they have any doubts about what they are publishing. The third main defence is Privilege, where certain groups are exempted from libel for certain reasons. Types of privilege include: 

• Statutory - where there is privilege in certain circumstances; such as reporting in court.  
• Absolute - where you can say anything you like, regardless of malice. This is a rare privilege that is enjoyed by MP's in parliament (e.g. Labour MP Tony Banks once referred to Margaret Thatcher as a 'sex starved boa constrictor). 
• Qualified Privilege

Journalists have Qualified Privilege. Reports should not show any malice and it is considered important that statements made against an individual were in the public interest. Journalists should look to show Positive Identification by methods such as putting the age, location or image after naming somebody in order to avoid being sued as a result of somebody of the same name to that reported taking offence or receiving persecution. 

Failure to do this is often referred to as 'broad brush identification' and this is potentially very dangerous indeed.

When using Qualified Privilege reporting must be fast, accurate and fair in order to prevent having it taken away from you if taken to court. The report should be published as soon as possible and any errors regardless of how trivial can also lead to the loss of QP. As previously mentioned writing should contain no malice and both side of the argument must be shown.

Following a high profile court case between former Rep of Ireland head Albert Reynolds and the Sunday Times, Lord Nicholls set out a list of circumstances to be examined by court in dealing with the defence, known as The Reynolds Test:

1. The seriousness of the allegation
2. The nature of the information
3. The source of the information
4. The steps taken to verify the information
5. The status of the information
6. The urgency of the matter
7. Whether comment was sought from the claimant
8. Whether it was a balanced article
9. The tone of the article
10. The timing of the publication