Part 11 - General principles of defamation, in the context of reporting court and inquest cases, or commenting on them

Question 1

How can reports of court cases be ‘fair and accurate’?

Answer 1

A report will be ‘fair and accurate’ if:

• it presents a summary of the cases put by both sides
• it contains no substantial inaccuracies
• it avoids giving disproportionate weight to one side or another

To be fair, a report of a trial must make clear that the defendant denies the charge(s) and, while it proceeds, that no verdict has been reached, e.g. by concluding with ‘the case continues’.

Question 2

Does privilege apply to outbursts from the public gallery?

Answer 2

Privilege may not protect defamatory matter shouted out in court, e.g. from the public gallery by someone who is not part of the proceedings.

But if the comment is shouted by someone who has given evidence as a witness in the case, privilege would protect its inclusion in a court report, provided all the defence’s requirements were met.

If the shouted comment is not defamatory, it can in defamation law be reported safely, no matter who made it.

Question 3

In defamation law what sort of material does privilege not apply to?

Answer 3

Extraneous material/comment is not covered by privilege.

Question 4

Provided that the requirements are met, what document will absolute or qualified privilege apply to the reporting of?

Answer 4

The reporting of a case document to which a journalist has been given access under Criminal Procedure Rules (including other protocols recognised in the rules) or otherwise by the court in order for him/her to report that criminal court case, if the journalist complies with any reporting restriction applying and if the document or relevant part has been read aloud in court, or treated by the court as if it had been read aloud because it has been referred to in the public proceedings.

Question 5

Aside from case documents, what else can absolute or qualified privilege apply to?

Answer 5

A report of written evidence a journalist has been authorised by a coroner to inspect to help the reporting of an inquest, or to a report of a case document which a journalist has a right to inspect under Civil Procedure Rules, or of any other document which a judge has decided should be provided to him/her to aid reporting of that civil court case, if the journalist complies with any reporting restriction applying.

Question 6

What defence may be available if matter is published which falls outside the protection of absolute or qualified privilege?

Answer 6

There may be no defence available or only the difficult defence of ‘truth’.