Flashcards
Privilege and other Defences
Cards in this deck (16)
- 1What is an Absolute privilege?This applies where the freedom of spreech is so important, and absolute defence is needed, for example, an MP. They shouldn't be worrying about being sued for saying something when it is important they say it.
- 2What is protected by absolute privilege?Parliament
Report, papers, votes and proceeding ordered to be published by House of Commons
Judicial Proceedings (s7(1) DA 2013)
(Stern v Piper [1996]). - 3Can Absolute privilege be rebutted?No, it cannot, it is an absolute defence.
- 4What is a qualified privilege?Applies where it is desirable that freedom of speech is protected, and the author is acting honestly and without malice.
(Have to prove they were acting maliciously with their privilege to make this defence fail). - 5What are the two forms of qualified privilege?Common law: The defendant has ‘legal, moral or social duty’ to publish, and the publisee has an interest in recieving the statement.
Statutory: s6 DA 2013 allows publication of articles in peer-reviewed journals (there are others) - 6Stuart v Bell [1891]The defendants opinion is irrelevant of what they think is a legal, social, or moral duty to publish.
The courts will decide. - 7Duty/interest testLook into
- 8British chiropractic association v Singh (Simon Singh) [2010]The statement made by the defendnat was allowed because the artcile had been put before a panel of experts before publication.
(s6 DA 2013 example) - 9What is the publication on a matter of public interest defence?Comes under s4 of DA 2013, it is a defence to show that:
The statement complained of was, or formed part of, a statement on a matter of public interest;
and
The defendant reasonably believed that publishing the statement complained of was in the public interest# - 10Do we need to look at Reynolds case?No, because s4(6) abolishes the defence
(check whether it can still be used as an example though) - 11What is the 2 stage test?The test comes from Flood Times Newspapers Ltd [2012]
Must believe that the publication was in the public interest at the time of publication (subjective);
and
Court must find that the belief was a reasonable one to hold in all the circumstances (objective). - 12Reynolds v Times Newspaper Ltd [1999]The claimant was a member of Irish Parliament, became PM, and took part in peace talks.
Article published in UK about political crisis, and resignation. Suggested the article withheld information and lied, the defendant claim common law privilege.
3 stage test applied
Duty to publish
Interest in receiving the info
Circumstantial test - 13Loutchansky v Times Newspapers [2002]The article stated that the Claimant was boss of Russian crime organisation.
Gave greater flexibility to defendant - 14Jameel v Wall Street Journal [2005]Article alleged that Jameel was on a list being monitored for terrorist activities
Defendant stated 5 anonymous sources
Factual matters regarding sources - 15What is offer to amend?This is where you say something which is not tue, but did not mean it, this mitogates your loss as a defendant, a public apology is sometimes enough.
Publis a correction of identity, correct published statement.
For correction viua publication to be suitable, it has to be published the same way as the original statement, same page, same size, same day. Cannot be less. - 16What does s2 DA 1996 say?The defendant must be prepared to
A) Admit that he or she was wrong (or partly wrong)
B) Offer in writing to make a suitable correction or apology
C) Publish the correction and apology in a manner that is reasonable and practicable in the circumstance
D) Pay the claimant compensation (if any) and such costs as may be agreed or determined payable
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- Law of Tort (Defamation) Flashcards on Privilege and other Defences, created by James Dolton on 22/01/2018.
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- James Dolton
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