Part VI

Defamation

6.1                                      Liability in defamation needs extra discussion because publication of the report of an inquiry can expose the authority to a new cause of action, namely in defamation, whereas the other liabilities described at the beginning of Part III will have arisen, or not, as a result of how the authority and others have conducted themselves in the matters giving rise to the inquiry.

6.2                                      To succeed in an action for defamation, the claimant must demonstrate that the matter complained of:

has been published to a third person (publication)[1]

6.3                                      As Gatley states, “the difficulty of producing a comprehensive definition of the meaning of ‘defamatory’ has often been remarked.”[2] Definitions in the case law have referred to exposing the claimant to hatred, contempt or ridicule,[3] causing a person to be shunned or avoided,[4] or lowered in the estimation of others.[5]

6.4                                      Once the statement is deemed capable of a defamatory meaning, by the judge, the test to be applied by the jury[6] is whether the imputation tends to “lower the plaintiff in the estimation of right-thinking members of society generally”.[7] It is clear that some local authority reports will contain defamatory material. Although in the joint guidelines issued by the LGA and ABI it is recommended that inquiries limit themselves to findings of fact,[8] defamatory material may be present in reports, especially if the report casts doubts on the professional capacity of officers of the authority.[9]

6.5                                      Publication occurs whenever the statement is communicated to a person other than the claimant.[10] Thus the possibility of defamation arises when the inquiry report is communicated to the members of the council, as well as when the authority makes it more publicly available.[11]

6.6                                      Publication may also arise where the report to be discussed must be made available for public inspection three clear days before the council is due to debate it.[12] In the future, publication of the report may also arise where the information has been communicated to an individual in accordance with the Freedom of Information Act 2000.[13]

Defences

6.7                                      Although the scope of liability is very wide, there are broad defences available to the defendant. These are:

                              (3)Truth or “justification”. It is a defence for the publisher of the report to establish that the defamatory statement is in fact true.[14] The danger of relying on a plea of justification is that the authority will have to discharge the burden of proving that the statement was in fact true.[15] This may be particularly onerous given that the report may rely on hearsay. The authority will have to establish these facts for itself in its defence before justification is made out. Moreover, such a plea will involve a full court hearing, potentially before a jury. This will undoubtedly add uncertainty and delay.

                              (4)Fair comment. It is a defence to a defamation action that the statement is a fair comment on a matter of public interest.[16] This defence is not particularly relevant for local authority reports as it attaches primarily to opinion, rather than facts. Ad hoc inquiries, although drawing conclusions, are primarily a vehicle for discovering facts. Despite the fact that some parts of reports may benefit from this defence, it does not provide sufficient cover for the whole of the report.

                              (5)Offer of amends. This defence obliges the defendant to pay compensation and/or damages to the aggrieved party, and publish an apology to the person defamed.[17] It is aimed at the innocent disseminator of a defamatory statement rather than a local authority which wishes to inform its community about those persons who may have been incompetent or acted improperly. Therefore this defence is not relevant to deliberate publication of defamatory matter by a local authority in an ad hoc report.

6.8                                      Defences (1) and (3) are absolute, in that they are not defeated by malice.[18] The claimant who can show malice will defeat the qualified privilege and fair comment defences.

Privilege

6.9                                      Privilege arises in situations in which it is in the public interest that the defamatory statement should be published. This defence overrides the normal protection afforded to a person’s reputation. Absolute privilege is the highest form of protection and attaches to matters of extreme public interest and the institutions of democratic power. Qualified privilege is reserved for situations in which although there is a good reason why the information may be published, malicious motivation or intent will remove that benefit.

6.10                                      Absolute privilege attaches to statements made in the course of Parliamentary proceedings.[19] In addition, various statutory provisions confer absolute privilege upon reports, statements and determinations of a number of persons and bodies performing investigative or regulatory functions which would not (or might not) be regarded as of a judicial nature.[20] The details and scope of the privilege vary considerably from one case to another.

6.11                                      There is no specific statutory provision applicable to local authority inquiries, but recourse may be had to the doctrine that no action will lie for defamatory statements made in the course of judicial proceedings before a court of justice. This doctrine also applies to statements made in the course of any proceedings before a tribunal (which includes a commission or inquiry) recognised by law which, though not a court in the ordinary sense, acts judicially – that is, in a manner similar to that in which a court of justice acts in respect of an inquiry before it.[21]

6.12                                      The findings of a tribunal are an intrinsic part of the hearing so that if the hearing itself is protected by absolute privilege, the same applies to its findings.[22] Therefore, the report of any body which can be said to be recognised by law and which carries out its investigations in a manner similar to that in which a court may, would attract absolute privilege. It is arguable that reports of some inquiries could be covered by absolute privilege as the context in which the inquiry was carried out may be so formal and adversarial in approach that it could be judicial in nature. In Trapp v Mackie[23] Lord Diplock said that it was necessary to

consider first under what authority the tribunal acts; secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.[24]

6.13                                      Proceedings which are judicial in nature have been held to include proceedings before the General Medical Council,[25] the Benchers of one of the Inns of Court,[26] the Disciplinary Committee of the Law Society,[27] courts martial[28] and coroner’s courts.[29] But administrative proceedings, such as applications for renewals of licences,[30] statements made to a medical referee,[31] and applications to a Social Security adjudicating officer,[32] will not benefit from this type of absolute privilege.

6.14                                      Some local authority inquiry reports may thus benefit from absolute privilege; however, we consider that it is unlikely that ad hoc local authority inquiries would be sufficiently judicial in nature to benefit from the defence. The authority does not carry out ad hoc inquiries under an express statutory power, still less a statutory duty; an inquisitorial, rather than adversarial procedure may be adopted; the terms of reference will involve a retrospective and prospective element, rather than simply reaching a verdict on (for instance) legal liability. In accordance with the guidance in Trapp v Mackie,[33]these factors point towards ad hoc inquiries being administrative, rather than judicial in nature.While some inquiries in which the local authority participates may be judicial, such as the new Standards Boards inquiries,[34] ad hoc inquiries of the type that we are discussing are more likely to be factual investigations with the aim of assessing structures and procedures rather than making binding legal decisions.

Qualified privilege

6.15                                      Qualified privilege grants a defence against liability in defamation for a broader range of situations than absolute privilege. The publisher of a report to which qualified privilege attaches will be protected unless it is shown that any defamatory statement contained in it was made with malice, that is, knowing it to be untrue, recklessly (without considering or caring whether or not it was true), or with some indirect or improper motive.[35] The rationale behind this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end.[36]

Statutory qualified privilege

6.16                                      The Defamation Acts of 1952 and 1996 extended the situations to which qualified privilege could attach[37] (but not to circumstances which would have covered the Jillings report).[38] “Reports” in the context of the Act does not refer to the actual publication of the original defamatory material, but rather to the repetition by the media of that material.[39] As to publication of the inquiry report itself, there is no category in the Schedule to the 1996 Act which would cover a local authority ad hoc inquiry report. Paragraph 15 of the Schedule permits the Lord Chancellor to designate by Statutory Instrument bodies whose reports will also benefit from the defence of qualified privilege, but none has been designated.[40]

6.17                                      Where the report must be open to inspection, in accordance with the public’s right of access to local authority papers,[41] the supply of that information will attract qualified privilege.[42] Local Government Act 1972, section 100H(5) grants a defence of qualified privilege to any transmission of an “accessible document.” This is defined to include any copy of the whole or part of a report,[43] or background paper[44] for the meeting. The regulations for the access to information and meetings of local authorities under the new executive structures provide that where information is to be open for public inspection,the documents will similarly attract qualified privilege.[45] Information supplied to the authority by a third person and disclosed to another person by the authority in accordance with the Freedom of Information Act 2000 will, when section 1 of that Act is in force, benefit from qualified privilege.[46]

6.18                                      There is no statutory qualified privilege where the material need not be open to inspection, due to a mandatory confidentiality exemption or a Schedule 12A exemption applying.[47] These exemptions – including those concerning the personal details of staff, information about recipients of any service provided by the council, legal advice and the identity of whistleblowers – prevents public access to the meeting and prior communication of the documents to be discussed at the meeting. They are most likely to be engaged where the subject matter is particularly sensitive – for instance, inquiries into maltreatment of the elderly or allegations of assault by school teachers.[48] But it is exactly these types of reports that are more likely to contain defamatory statements. Thus where the report alleges that a person is guilty of a criminal offence, for example, of assault, that statement is defamatory.[49] In a similar manner, imputations on the character of an employee of the council, or a statement that that person lacks some essential quality to carry on the office, trade or profession successfully, are defamatory.[50] The reports which would benefit most from a statutory defence of qualified privilege, are thus not covered by the defence.

6.19                                      Therefore for the reports about which we are most concerned, there is no statutory defence of qualified privilege available. However, the common law qualified privilege, which was not repealed by the 1996 Act, may still be of relevance in some situations.

6.20                                      In Adam v Ward Lord Atkinson said that:

a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.[51]

6.21                                      While it is clear that this will encompass legal duties to communicate or receive statements, it is less certain how far this extends in the context of moral and social duties. Moral duty was defined by Lindley LJ in Stuart v Bell:

… to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal …[52]

6.22                                      When applying this test, it is important to consider to whom publication has been made. The making of a statement to the inquiry panel itself will clearly attract qualified privilege. The step of making the inquiry report available to the commissioning authority should also attract qualified privilege, as there would be a duty on the panel to report its findings, and a corresponding duty on at least that part of the authority which set up the inquiry to be informed of the findings. If an officer of an authority, or an insurer, were troubled by the prospect of the report being made available only to the elected members, this would be for the practical reason of fearing that members would disseminate the information more widely, rather than on the legal ground that to do so would be indefensible in law.

6.23                                      The position is not the same where the report may be made available to a section of the community, or the general public. The question of whether publication in this wider sense would attract qualified privilege under the common law is more difficult. While in theory there could well be a reciprocal duty-interest in a report if it were merely distributed to those in the area of the local authority, in practice it is highly unlikely that an authority could restrict publication to people within a certain area. The Jillings report, if it had been published, would have been distributed far beyond the area of the former Clwyd County Council. Too wide a publication, to persons who lack the requisite interest in receiving the information, is not privileged.[53] For example, circulating copies of the report to care staff in another authority may be justifiable in the interests of spreading best practice, but posting the report on the Internet may not be.

6.24                                      Nevertheless, there are occasions when the publisher can be said to have a duty to publish, and the public to have a genuine interest in being informed, and publication to the world at large should then be privileged. Whether a publication is in the public interest depends upon the circumstances of the case, including the nature of the matter published and its source or status.[54] The question is whether the local authority owes a legal, moral or social duty to disclose the information and whether the public has a reciprocal interest in receiving it. The difficulty for the authority, under the present law, lies in knowing where the boundary lies between permissible and impermissible publication.

6.25                                      In De Buse v McCarthy,[55] there had been a loss of petrol, and two employees had been convicted of criminal offences in relation to the loss. One of the convicted people made allegations against other employees of the council, and so the council had the matter investigated by a committee. The committee reported to the council. As part of the normal practice of giving advance notice of matters to be discussed at council meetings, the report of the committee was distributed around public libraries, as the matter was on the agenda.

6.26                                      The council pleaded that it was protected by common law qualified privilege. In deciding this issue, Lord Greene MR set out the test: “adopting the language of Lord Atkinson, we have to consider, first, what interest or duty the council had to communicate to the ratepayers the report of a committee which the council was proposing to consider …”.[56] Lord Greene held that, given the preliminary nature of the report, on which the council had not decided its stance, while there was obviously a duty and an interest in the committee reporting to the council, there was no duty nor interest on the part of the council to communicate it to the ratepayers. He held, though, obiter, “There may well have been a duty, or, if not a duty at any rate an interest, of the council to inform the ratepayers of the result of its own deliberations.”[57]

General public interest

6.27                                      There is a different strand of authority which may also be of assistance to local authorities considering the risks of an action in defamation. It stems from the decision of the House of Lords in Reynolds v Times Newspapers Ltd.[58] While their Lordships explained the decision in terms of the “duty-interest” test, being a moral duty on the part of the media to publish, and a “legitimate interest” on the part of the general public to be informed of, the matters in question, it seems that the underlying principles give the authority a wider reach, as described:

The reality, however, is that this is, conceptually, a different species of qualified privilege from both the more general duty and interest based defence and the defined categories of privileged reports … The underlying basis of the Reynolds’ defence is that where the subject matter of the defamatory material is of sufficient importance to the public and the defendant has behaved reasonably and responsibly, the publication will be protected.[59]

6.28                                      In Reynolds v Times Newspapers Ltd, the House of Lords considered whether qualified privilege attached to a newspaper article which had implied that the Prime Minister of Eire had lied to the Dáil (House of Representatives).[60] Lord Nicholls’ comments in that case, which have been relied upon in subsequent cases on the point, provide useful guidance:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject matter is a matter of public concern.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff’s side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.[61]

6.29                                      The principles set out in Reynolds fell to be considered in Loutchansky v Times Newspapers Ltd.[62] The Court of Appeal confirmed that Reynolds

is designed to enable a proper balance between on the one hand the cardinal importance of freedom of expression by the media on all matters of public concern, and on the other the right of an individual to his good reputation.[63]

6.30                                      The court also explained that Reynolds had developed the common law, first in that privilege deriving from Reynolds attaches to the publication itself rather than to the occasion of publication, and second that if Reynolds privilege attaches, then there is little scope for any finding of malice.[64] It affirmed that Reynolds is indeed a significant departure from the previous law: it is “a different jurisprudential creature from the traditional form of privilege from which it sprang”.[65]

6.31                                      Loutchansky is significant also, for confirming that application of the principles in Reynolds may not be easy. Indeed, on the substantive appeal, the Court of Appeal held that the trial judge had applied the wrong test to the question whether there was a duty to publish, through mis-interpretation of Reynolds.[66]

6.32                                      The House of Lords in Reynolds emphasised that cases should be decided on their individual facts, but applying the principles they enumerated. While Reynolds concerns the freedom of expression of the press, in particular in relation to investigative journalism as opposed to reporting,[67] and may not translate simply to the context of local authority inquiry reports (in applying the principles to local authority inquiry reports some of the principles would have to be adapted) there nevertheless seems to be considerable scope for arguing that application of these principles, and a proper balancing of the factors in the individual case, could well result in a defence of qualified privilege applying to the general publication of a report. Whether it is put as an aspect of the duty-interest test, or as a conceptually different approach probably does not matter. Loutchansky demonstrates, however, that it might not be a straightforward matter, and it is not, moreover, clear how widely a report might be published with the benefit of common law privilege.

Conclusion

6.33                                      Reports of local authority ad hoc inquiries which do not have Parliamentary privilege or which are not published by the appropriate statutory officers or bodies are in an unsatisfactory position. Reports which may be withheld from public inspection when tabled for discussion at a council meeting fall into this category, and many ad hoc inquiry reports will be of this type because of their subject matter. The reports will not automatically benefit from a defence but will have to rely on the “duty-interest” test of common law qualified privilege. The application of this test is a matter of judgment, and it may ultimately not cover the report. The report may, however, attract qualified privilege, applying the principles enumerated in Reynolds, if the court finds that the public was indeed “entitled to know the particular information”.[68]