Defamation, Qualified Privilege and the European Convention on Human Rights

Extract

Defamation law protects reputation while affording a significant measure of protection to freedom of expression. Valuable expressive activity is protected by, inter alia, a number of defences, including qualified privilege. In order successfully to invoke this defence, defendants who honestly believe their—factually false—statements to be true must meet two requirements. First, they must establish “an interest or a duty, legal, social, or moral”, to communicate the relevant material to another (or others). Secondly, the recipient of the material must be shown to have “a corresponding interest or duty to receive it”. (See Adam v. Ward [1917] A.C. 309, p. 334, per Lord Atkinson.) The requirements of the qualified privilege defence have recently been glossed by the Court of Appeal in Reynolds v. Times Newspapers and Others [1998] 3 W.L.R. 862 (which is on appeal to the House of Lords). While the Court can be regarded as having extended the defence's scope, the position it has staked out is not, in all respects, clear. As a result the qualified privilege defence may fail to meet the requirements of the right to freedom of expression enunciated in Article 10 of the European Convention on Human Rights (E.C.H.R.). (When the Human Rights Act 1998 comes into force, the E.C.H.R. will be an element of domestic law.)