Explaining absolute privilege

The term absolute privilege left many scratching their heads after Lord Hain revealed Sir Philip Green as the “leading businessman” behind the injunction against the Telegraph.

With a long and storied history, absolute privilege protects MPs against being sued for words said in Parliament. Originating as a legal tradition, it is vital to allowing MPs to speak their mind whilst in Parliament.

The latest case of Sir Philip, named by Labour peer Lord Peter Hain, is a prime example of absolute privilege in work. Lord Hain’s naming of Sir Green is protected from the recent injunction laid upon the alleged sexual harassment and racial abuse of staff from a “leading businessman” by the Court of Appeal.

The tradition was first written in Parliamentary Practice by Erskine May, a highly important text on UK law, which notes several rights of Parliament including freedom of speech despite defamation law. This concerns parliamentary privilege; however absolute privilege does apply to journalists in specific situations, as well.

The practice was first mentioned directly in the Defamation Act 1996 where it was extended to journalists reporting on court cases so long as their reports are fair, accurate, and happen at the same time as the case itself. This was itself extended in the Defamation Act 2013 to include any court case outside of the UK if it is established by the UN security council or by international agreement such as in the European Court of Human Rights. The concept has also been developed through case law. In 2006 it was established that the fairness of an article outweighed accuracy in importance as Mr Justice Eady stated that “inaccuraciesin themselves do not defeat privilege” in Bennett v Newsquest.

Journalist are also protected by qualified privilege. This form of privilege applies when reporting topics such as press conferences, public meetings, and parliament, and is applied due to the importance of the information to society. It too is provided by the 1996 Defamation Act which was later amended in 2013. In order for privilege to apply, the reporting must be fair, accurate, and without malice but anyone defamed by the report can request an explanation or contradiction be published.

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