A more in-depth look at privilege

A privileged occasion exists where there is the right, duty, or interest in publishing certain defamatory content, and the person to whom it is published has a corresponding right, duty, or interest to learn of such assertions. As established in my previous article Defamation and its defences, privileged occasion is a defence against the element of wrongfulness, which is rebuttably presumed in defamation claims. This defence does have its limitations however as it falls away if the plaintiff in the action can prove that defendant exceeded the bounds of the justification of privilege. It is thus important to understand the different categories of privilege, and where the bounds lie. Privileged occasion can be divided into two categories: absolute privilege and relative privilege.

Absolute privilege

Absolute privilege refers to the circumstances in which a person has complete freedom of speech protected by statute (i.e. and Act of Parliament). The most prominent example is how Cabinet members and members of Parliament (the National Assembly and National Council of Provinces) are completely protected against liability for any defamatory remarks made in Parliament or any of its committees. This is provided for in both the Constitution and the Powers and Privileges of Parliament Act. Similar protection is afforded to various provincial legislatures (provincial law-making bodies). The onus is on the defendant however to prove that his conduct falls within the provisions of a particular statute. This is subject to a strict interpretation however because it precludes the Common Law right of a person to claim damages for the injury to their personality.

 

Qualified (relative) privilege

The second category that exists is that of qualified privilege, otherwise known as relative privilege. This type of privilege only exists in three situations:

1: Discharge of a duty or furtherance of an interest

As previously noted, this exists where a person publishing the defamatory material is under a legal, moral, or social duty to do so or has a legitimate interest in doing so, and the person to whom it is published has a similar duty or interest to receive it. There should not be any problems in determining whether there is a legal duty as these are usually quite clear (for example there is a duty to provide information regarding a crime to the police). Moral and social duties are trickier to determine. Moral or social duties must be determined objectively with reference to the reasonable person criterion (i.e. whether in the opinion of a reasonable person such a reciprocal duty existed). There are however several factors which play a role in determining this, such as: the existence of a particular relationship (e.g. parent and child concerning the character of the child’s fiancé), the fact that the information was provided confidentially on request to someone with a legitimate interest, and the evident seriousness, importance, and urgency of the issue in respect of which the defamatory statement was made.

If such a duty or interest is proved, the defendant must further prove that he acted within the scope/boundaries of the privilege. This is once again evaluated with reference to the objective “reasonable person” criterion. The defendant must prove that the defamatory statements were relevant to or reasonably connected with the discharge of the duty or furtherance of the interest. Even false or untrue remarks may be relevant, however if the remarks appear to be reasonably untrue to the objective and reasonable person, the remark will exceed the bounds of the privilege. The plaintiff can however rebut this by proving that the defendant acted with malice, which will usually be proved from intrinsic or extrinsic facts (e.g. defendant did not believe the assertions were true, bad blood between the parties, etc.) as opposed to mere spite or “ill-will”.

This defence is not available to newspapers however, although newspapers could still argue the defence of reasonableness.

2: Judicial or quasi-judicial proceedings

This category of relative privilege applies to statements made by a witness, legal representative, or litigant during court proceedings and to those of the judicial officer during his finding. The only qualification is that with the exception of the presiding officer, the defendant must show that the objectionable remarks were relevant to the matter at issue. The plaintiff may then however prove that notwithstanding their relevance, they were not supported by reasonable grounds (i.e. the circumstances or evidence of the case). If the plaintiff succeeds in proving this, the defendant will be deemed to have exceeded his privilege and acted wrongfully.

3: Reporting of proceedings of courts, Parliament, and public statutory bodies

The final category of relative privilege exists where the defendant can prove that the reporting was a fair (reasonable) and substantially accurate account of the proceedings. This defence only protects PUBLIC court proceedings however (i.e. the content of any documents not yet introduced in open court and in camera proceedings may not be published, unless only part of the proceedings were in camera in which case they should be reported for accuracy purposes). Republishing old proceedings is contrary to public policy and therefore wrongful, and as such only recent proceedings are protected.

In terms of Parliament, the reporting must be “fair and substantially accurate” however when reporting on foreign parliaments, the defendant must further prove that the publication was “in the interest of the South African public”. In terms of Public Statutory Bodies (public bodies created in terms of a statute), the report must be true and impartial, and both the proceedings and report must be in the public interest in order for this defence to succeed.

 

These, in a nutshell, are the occasions that are protected by privilege. Not so hard right?

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