Qualified privilege and defamation law

Answer

On 13 December 2024, the Court of Appeal handed down a judgment in Iqbal v Geo TV [2024] considering in some detail the defence of statutory qualified privilege against a libel claim.

The facts

The claim arises out of a Pakistani political rally during which allegedly defamatory statements were made by a politician about Iqbal, the head of a news network in Pakistan. Geo TV broadcast the event live in the UK and thereafter broadcast frequent bulletins summarising the politician's statement.

Iqbal issued proceedings against Geo for libel. Geo issued an application for summary judgment maintaining that Iqbal had no prospects of success and there was no other compelling reason to go to trial. Geo asserted that it had a complete defence under section15 of the Defamation Act 1996 on the basis that the broadcasts were fair and accurate reports of proceedings at a public meeting, published without malice.

The law

Section15 of the Defamation Act 1996 provides as follows:

“(1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.

(3) This section does not apply to the publication to the public, or a section of the public, of matter which is not of public interest and the publication of which is not for the public benefit".

The types of statement in Schedule 1 include a “fair and accurate report of proceedings at any public meeting held anywhere in the world”, with public meeting meaning “a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public interest, whether admission to the meeting is general or restricted.”

This sets out the test that defendants must meet to successfully rely on the defence of statutory qualified privilege against defamation proceedings. In addition, the defence can’t be relied upon if the defendant refused or neglected to publish an explanatory statement by the claimant when requested to do so.

The High Court judgment

The High Court judge found that Iqbal had realistic prospects of success as to whether the statements complained of fell outside of the protection of privilege as a matter that was "not of public interest and the publication of which is not for the public benefit", and also found that the issue of malice couldn’t fairly be determined summarily.

Geo's application was accordingly dismissed. Geo appealed.

The Court of Appeal judgment

The Court of Appeal found that the High Court judge should’ve entered summary judgment for the defendant.

It agreed without difficulty that the statements had been made at a ‘public meeting’ and that a live broadcast constituted a ‘report’ within the meaning of statute.

Further, the statements met the other requirements of section15(3). Section15 is constructed such that privilege that’s been found to apply by virtue of section15(1) can be disapplied in respect of matter if it’s “not in the public interest” and its “publication is not for the public benefit”.

Lord Justice Warby found that these requirements were cumulative such that privilege can be lost only if both conditions are met.

The statements complained of were allegations of bribery and corruption by a senior politician. Warby found that the matter was clearly in the public interest. He didn’t accordingly need to consider whether publication was for the public benefit, but still found that there was no basis to conclude that it was not. Fair, accurate and thorough reports of statements in a political contest are generally for the public benefit.

As to malice, Iqbal's complaints didn’t meet the high bar and were found to be at best allegations of careless or irresponsible journalism. A dominant improper motive is incapable in law of defeating a reporting privilege. Knowing or reckless falsity could suffice but Iqbal's case advanced no factual proposition that, if proved at trial, could establish this.

Comment

Qualified privilege is a creature of the common law and grew out of the recognition that there are certain occasions when someone should be free to report potentially defamatory statements without fear of being sued, provided it was done without malice. Parliamentary and judicial proceedings are the classic example – defamatory statements made in these contexts benefit from absolute privilege, which means that MPs or parties trying to assert legal rights in court can speak freely without risking liability.

Qualified privilege extends this protection to reports of such proceedings. Section15 of the Defamation Act 1996 applies qualified privilege to reports of public meetings that meet the statutory test. Lawful meetings held for the purpose of discussions of public interest could include local authority meetings, town hall debates or, as in this case, political rallies.

The Court of Appeal has reaffirmed the protection afforded by section15 of the Defamation Act 1996 and clarified its application. However, the judgment is a reminder that privilege isn’t automatic and that publishers must meet all the elements of the defence, for example ensuring reports are fair and accurate, publishing a statement by the claimant when requested to do so and publishing without malice.

Section15 also applies to very specific circumstances. The defendant in this case didn’t push for summary judgment on section 4 of the Defamation Act 2013, which contains the defence often relied upon by publishers where no privilege can arise. Those seeking to rely on this defence must show:

• that the statement related to a matter of public interest; and
• a reasonable belief that publication was in the public interest, which involves consideration of all the circumstances of the case.

This means that those who publish defamatory statements irresponsibly, for example without attempting to verify the truth of what’s being published or giving opportunities to comment, may find themselves liable for significant damages.

Pauline Lépissier is a partner at Devonshires Solicitors.