Pushing the boundaries of Qualified Privilege - how far is too far?
19/09/2024
In a decision handed down late last month, Mrs Justice Steyn made a number of interesting and important comments about the application of the defence of statutory qualified privilege pursuant to Section 15 of the Defamation Act 1996.
The case was brought by Dr Ashti Hawrami, who served as the Minister of Natural Resources in the Kurdistan Regional Government of Iraq between May 2006 and July 2019, and then as the Assistant Prime Minister for Energy Affairs until the early part of 2022.
Dr Hawrami claimed that an article published on the website of The Organised Crime and Corruption Reporting Project (the OCCRP) entitled “The Rise and Fall of a US Oilman” contained defamatory statements identifying him.
The Defendants, Journalism Development Network Inc. (the publisher of the OCCRP), and two individual journalists, argued against the alleged defamatory meanings contended by the Claimant, denied that the Article was defamatory of the Claimant, and, in the alternative, argued that the article was protected by statutory qualified privilege.
The Defendants argued that their publication was a fair and accurate summary of a judgment in a civil case (Excalibur Ventures LLC v Texas Keystone Inc & Ors [2013] EWHC 2767 (Comm)), and as such, it was protected by qualified privilege.
The Claimant countered, arguing that the qualified privilege defence had no real prospect of success because the reasoning in Excalibur contained nothing that could be considered as defamatory of Dr Hawrami, and in fact, contained statements that painted him as a man of great integrity.
So, when is a report protected by statutory qualified privilege?
As is established through case law, “fairness and accuracy are matters of substance not form. A report does not need to be verbatim. It may to an extent be impressionistic….Minor inaccuracies will not deprive a defendant of the privilege”.
On the other hand, “if there is a substantial or material misstatement of fact that is prejudicial to the Claimant’s reputation, the report will not be privileged”.
Further, “it is not enough that the proceedings are a source of information. It must be sufficiently apparent from the publication that it is reporting those proceedings”.
The waters are also somewhat muddied by the combination of a report of proceedings being intermingled with extraneous facts - such additions “run the risk of depriving the text of the quality of fairness essential to attract privilege”.
In this case, it was held that the Excalibur judgment gave the impression that the Claimant was a “man of honour and integrity, working against corruption and in the interest of the autonomous region of Kurdistan”.
However, the publication by the OCCRP relied on multiple sources (in addition to the Excalibur judgment), to the extent that the reader would not have known what passages were from the Excalibur proceedings or judgment.
Steyn J. concluded:
“In my judgment, it is manifest that the Article is a “critically different text” in which the material contained in the Excalibur judgment and materials has been so embellished, indeed contradicted, and so intermingled with extraneous material, that the quality of fairness required for reporting privilege has been entirely lost. The Article fundamentally alters the impression which the reader would have gained had they read the Excalibur judgment or been present when the evidence relied on was given during the proceedings”.
The Judge therefore held that the Defendants had, in fact, gone too far.
Whilst there were sections of the piece where it was clear that the source of the material was the Excalibur judgment, they were not a fair and accurate report of the proceedings - this was fatal to the Defendants’ argued case, which is why Steyn J. entering judgment for the Claimant.
As well as dismissing the defence of statutory qualified privilege, Steyn, J. also determined the natural and ordinary meanings of the publication, and confirmed that those meanings were defamatory of the Claimant at common law. The case now proceeds, with only the Defendants’ public interest defence pursuant to Section 4 of the Defamation Act 2013 to be determined.
This judgment serves as a cautionary tale for publishers to take great care when relying on statutory qualified privilege for anything other than a straightforward report of proceedings. Qualified privilege might, on the face of it, seem like a very straightforward proposition, but as soon as extraneous fact and material are introduced, its application becomes very complex and the protection of QP is at risk of being lost.
I began by asking “how far is too far?”. As ever, it’s impossible to give a precise answer, but it’s clear that as soon as you go beyond a fair and accurate report of an earlier Court judgment (or police press release, local government briefing, and so on), you may be entering dangerous territory.