The Defence of Absolute Privilege

July 7, 2014

Absolute Privilege is one of the defences available which can be used to defeat an action for defamation of character. There are certain ingredients required in order to found a defamation action.

These are:-

1. Publication by the Defendant, to a third party;

2. Of one or more defamatory statements;

3. Which will have been understood to refer to the Plaintiff.

Most members of the public will be aware of instances when the defence of absolute privilege arises. For example, it arises in relation to statements made during the course of Judicial or Quasi Judicial proceedings such as those in Court, or those before the Solicitor Disciplinary Tribunal or at General Medical Council Hearings. Absolute privilege also attaches to statements made during parliamentary proceedings and written and oral statements made to the Police.

The rationale behind the defence of Absolute Privilege is one of public policy which dictates that people should feel free to speak their minds in certain arenas without the fear of being subject to defamation proceedings.

In a recent decision of the High Court of Justice in Northern Ireland there had been an attempt by the publisher of alleged defamatory material to show the Court that a complaint made to a particular professional regulatory body should be protected by Absolute Privilege. The Defendant attempted to show the Court that this particular professional regulatory body was a body which was recognised by law as a quasi judicial authority. After hearing legal argument by both Counsel the Judge stated in his written Judgement that:-

“In balancing the interests in this matter and the context of the standing and constitution of this particular body, only one of a number of such bodies dealing with [this] profession, all without any statutory or parliamentary control, I determine that this particular body does not meet the criterion”.

The Defendant had attempted to push the law a little further following on from the decision of Mr Justice Eady in the case of White v Southampton University Hospitals NHS Trust and Roche [2011] EWHC 825 (QB). In this case it was held that communications to professional bodies, such as the General Medical Council, for the purposes of investigation are protected by absolute privilege. Mr  Justice Eady found that there were public policy reasons why people should be able to speak freely, without inhibition and without fear of being sued in such circumstances, ultimately for the benefit of the public.

However, determining which professional regulatory bodies this defence may apply to requires detailed analysis of the rules of the Disciplinary Tribunal of the regulatory body in question and what type of complaints it is able to handle.

For further information or guidance please do not hesitate to contact our Mr Fergal Maguire.

This is a general guidance and is not intended nor should it be taken as legal advice.

Fergal Maguire, Associate, Cleaver Fulton Rankin

Please note; the content of this article is for information purposes only and further advice should be sought from a professional legal advisor before any action is taken.

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