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Qualified privilege and court papers: a cautionary tale

It has long been common practice for journalists to report extracts from or summarise court documents, and to rely on protection from statutory and common law qualified privilege when doing so.

Following the ruling in Qadir v Associated Newspapers Limited (“ANL”) it appears that journalists need to exercise more care in order to be able to claim that a story is in the ‘public interest’ and rely on qualified privilege. Without the story having public interest, the qualified privilege defence cannot be relied upon.

In this case, ANL published stories that were primarily based on the court documents from cases involving allegations against Qadir.

The paper published extracts of the defamatory allegations against Qadir, without publishing that they were entirely disputed by him, or clearly publishing the Judge’s comments on the matter.

The Judge ruled that there was no public interest in a report  that did not attempt to reach a balance by at least mentioning that the facts of the claim were disputed.

The article incorrectly stated that Qadir declined to comment, which contributed to the finding that there was no public interest in such an article.

As a consequence, the publishers lost the protection of statutory qualified privilege under s.15 Defamation Act 1996, and also lost the protection of common law qualified privilege (‘responsible journalism’) as the Judge stated that such an article was “not the product of responsible journalism”.

It follows that simply quoting court documents will not afford the protection of qualified privilege if it is done without any thought to providing a balanced view in order that the report is in the public interest.

The case also demonstrates that with online versions of articles, there is an obligation to update them once the writer becomes aware that they contain inaccuracies.

Once the newspaper realised that Qadir had submitted a full defence to the court, the court ruled that they were under an obligation to alter the earlier online article.

Interestingly, this case was the first time that a court has considered malice in the context of reporting the contents of court documents.

Significantly, because the Judge had already ruled out ANL’s qualified privilege defence, he did not have to consider the issue of malice, but decided to none the less.

Due to the fact that the journalist was willing to let an article containing false statements continue to appear online, and once he knew of the defence, he still omitted to explain Qadir’s side, the Judge found that there was malice on the part of ANL. It had published statements that it did not believe to be true.

This ruling should act as a cautionary note to journalists; even if an article comes within the protection of one of the qualified privilege defences, a finding of malice will stop the defence applying, as will a finding that the article is not in the public interest. Therefore you can still be open to claims for defamation.

In practice, if you publish defamatory allegations from a Claim Form or Particulars of Claim, make sure that you also mention whether the allegations are disputed or if a defence has been filed.

Essentially, the key is to present a balanced story when the information is available. Further to that, where possible take steps to demonstrate that there is no malice involved, like altering inaccurate online articles, to enable a continued reliance on qualified privilege.

2 comments

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  • October 23, 2012 at 9:59 am
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    The key has always been ‘fair and balanced reporting’. Fairly obvious that only printing one side of the claims is not fair or balanced.
    Just seems like bad reporting to me and should have no real impact on journalists that understand the law and report correctly.
    Not even a case of ‘there but for the grace of God….’

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  • October 23, 2012 at 1:34 pm
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    Agree with the above. I’ve read about this elsewhere and some claimed it would make a difference to qualified privilege. It just seems to be a reminder that you can’t report a completely one-sided story of a court case, particularly when its challenged.

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