Updated and revised: 8 December 2008
Date added: 1 May 2007This guide is intended as an introduction to the law of defamation, and in particular, how it applies to the dissemination of information by MPs. It should help highlight where there are potential risk areas for MPs and their work, especially in relation to websites and campaigning material.
- The Basics
- Parliamentary Privilege: A Common Pitfall
- Complaint where your MP is the Subject of a Defamatory Statement?
- Illustrative Examples
- Further Reading
In the last three years, there have been at least three libel claims brought against MPs. These have arisen from press releases, news items on an MP’s website and letters.
For an MP, communicating with constituents, party members, political opponents, government departments and the media is a fundamental requirement. Earlier this year, Parliament recognised the importance of this type of communication with the public and voted for MPs to receive an additional £10,000 per annum expenses to assist in non-party political communications about Parliamentary business, such as the running costs of websites.
For anyone imparting information to others, the law of defamation is a constraint on what may lawfully be said.
At its simplest, a defamatory statement is a statement about a third party which tends to make people generally think less well of them and “lowers” their reputation. The words ‘tends to’ are very important because the person suing does not have to prove that the words actually did lower their reputation. Both individuals and corporate bodies can sue in defamation (although the dead cannot). Where a defamatory statement is made about a company or political body or action group this may well reflect on its senior officers personally. Even a statement which does not identify anyone by name may be defamatory if it includes enough information for people to be able to work out who was being referred to.
Defamation comprises the two similar legal wrongs of libel and slander. An action will be a libel wherever the statement is published in a permanent form, whereas slander covers unrecorded spoken words – usually direct speech. If your MP is a ‘media junkie’, it is worth remembering that a defamatory statement broadcast on radio or TV is treated as libel rather than slander.
Of course, newspapers are usually thought of as typical defendants to a libel action but, in fact, any permanent statement may be the subject of a claim. This will include printed material such as letters, press releases, leaflets and reports, but also statements recorded in electronic form, such as websites or podcasts, and speeches or interviews on television and radio.
Where the media uses a quote from an MP which is defamatory and which he or she provided to them with the intention of it being published, both the media organisation re-publishing the quote and the MP may be sued.
A defamatory statement must be published to a third party who is not the person about whom the defamatory statement is made. For example, it is not actionable to say something defamatory of Ms A in a letter to her alone (although it will be if the letter is copied to someone else).
A statement may be defamatory, but the maker might have a defence which will mean a libel action would fail. Defences in libel are complex, but those that are most likely to apply to the work of MPs are:
- Justification – this means proving with evidence that the defamatory statement is true. Often both sides will argue about exactly what a statement was understood as meaning and this will affect what a defendant might have to be capable of proving true.
- Parliamentary privilege – this is a special immunity which applies only to proceedings in Parliament – see below for further details.
- Qualified privilege – this means that the maker has a duty to make a statement to a person who is in a position which gives rise to a particular interest in receiving the statement (such as complaints properly brought to the attention of the appropriate investigating body like an ombudsman, the police, or the FSA).
- Reynolds public interest privilege – this is a defence for responsible journalism on topics of public interest. It may have wider scope than just the traditional media; for example, it may protect an MP’s blog, but in every case the maker of the statement would need to show that he or she had done a journalistic job of a high standard. This usually means at least contacting the subject of the defamatory statement to notify them of the allegations being made and giving them an opportunity to respond and including their response in the published article. The tone of the article is relevant to whether this defence will be successful, and therefore a partisan or opinionated commentary is less likely to be protected.
- Honest comment – this means showing that the statement was one of opinion based on true facts.
If you are proposing to issue any statement on behalf of an MP which includes statements which may be defamatory of a person or company, you should consider carefully what grounds are available to defend any complaint. And be wary of simply saying that the MP knows something to be true – proving it in court can be very difficult and expensive.
Parliamentary Privilege: A Common Pitfall
The importance of free speech in an MPs’ constitutional role is recognised and he or she is granted a special immunity. The Defamation Act 1996 provides that an MP is protected from legal liability for “words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament”. This applies to speeches, submissions or giving evidence to the House or a committee, preparing documents for the purpose of either of the above, or communications with the Parliamentary Commissioner for Standards.
Although the statutory protection says it covers things which are “incidental” to Parliamentary proceedings, this should not be understood to cover any activity which is outside of those listed specifically above. In particular, it is very unlikely to cover issuing press releases, leaflets or letters which repeat defamatory statements which were initially made in Parliament (and were therefore protected). If an MP has made a contentious speech in the House which includes defamatory statements about a person or individual, and you wish to publicise this, it is important to make sure before you do so that the MP will have the benefit of an alternative defence to a libel action. Parliamentary privilege will usually not help in these circumstances.
Complaint where your MP is the Subject of a Defamatory Statement?
Libel actions brought by MPs against newspapers are probably how most people commonly associate this branch of the law and politics.
Where a statement is published about an MP which is untrue and which causes people to think less well of him or her, this is likely to be defamatory.
It is not usually possible to obtain an injunction to prevent a defamatory statement being published. However, because a newspaper may want to rely on the Reynolds public interest defence (referred to above) a journalist should follow certain principles in order to demonstrate that the publication or broadcaster was acting responsibly. These would usually include contacting the MP, or his or her assistant, to: (a) explain exactly what the nature of the allegations are; (b) allow a reasonable amount of time for you to investigate; (c) obtain a comment from the MP; and (d) include the gist of the MP’s side of the story in any published or broadcast article.
If you are responding to a journalist’s enquiry, try to take a note of the conversation. You should avoid making any comment before you have had an opportunity to consider the allegation properly, even if their deadline is close. In particular, try to avoid responses which might be construed as acquiescing with what the journalist is saying: the journalist could try to rely on this later as confirming his version of events. If they appear to have their facts wrong, you should point this out to them immediately.
This article is not intended as legal advice, and in the event of a specific issue, seeking legal help is recommended.
http://www.guardian.co.uk/media/2007/jun/14/mailonsunday.pressandpublishing1 (strong language warning!)
Reputation, Celebrity and Defamation Law – David Rolph – includes a history of UK defamation law but uses Australian case studies. Still, could be useful if your MP decides to appear on ‘I’m A Celebrity, Get Me Out of Here’
McNae’s Essential Law for Journalists – Tom Welsh, Walter Greenwood & David Banks – the classic media law textbook, you may find it useful to keep a copy in the office. Covers defamation and there are also sections on election law, information from government and official secrets, which you may find useful.
The Law and Parliament – Dawn Oliver & Gavin Drewry – less a textbook, more an interesting collection of essay on current topical issues relating to parliament.
JS May 2007/December 2008
Jo Sanders (Jo.Sanders@harbottle.com)is a solicitor in the Litigation Department ofHarbottle & Lewis LLP