Were the media safe to name Ryan Giggs? | David Banks

Reports on parliament are given qualified privilege, but it may not offer as much protection as the media think

It is one of the few occasions when journalists feel truly safe – when they are reporting from parliament or the courts.

In court their reports are protected from legal proceedings by absolute privilege and in parliament their copy has the defence of qualified privilege. Or so they thought.

A small bomb lobbed into the end of Friday's report by Lord Neuberger no doubt gave some newsrooms cause to consider just how safe they were in reporting MP John Hemming's disclosure in parliament that Ryan Giggs had been granted an injunction.

Neuberger pointed out that while Hansard has the protection of the 1840 Parliamentary Papers Act against legal proceedings, most media reporting of parliament does not get such protection because it is not published by order of parliament.

This leaves the media relying on qualified privilege, and there is no doubt that qualified privilege defends reports of parliament against defamation proceedings. However, the current debate is not about defamation, it is about contempt – an entirely different area of law.

Qualified privilege is a defence with conditions placed upon it. The report must be fair, accurate, on a matter of public interest and published without malice.

It is this requirement of public interest and absence of malice that are crucial. In his report Lord Neuberger said: "It therefore appears to be an open question whether and to what extent the common law protects media reporting of parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act.

"What is clear is that unfettered reporting of parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right."

He adds that it is a matter for parliament to decide whether it wants to clarify the law in this area – perhaps in the defamation bill whose draft is currently being considered in committee.

In the meantime, he suggests, reports of parliamentary proceedings in apparent breach of court orders might be considered on a case-by-case basis to decide whether or not they are in contempt.

This has a distinct disadvantage to the media reporting proceedings in that, as Lord Neuberger points out, there is a lack of certainty as to whether a report will be safe.

There is some hope for parliamentary reporters in the parallel he draws with qualified privilege as it is applied to court reporting. This is subject to the same conditions of fairness, accuracy, public interest and absence of malice.

It should be noted that in modern times there are no recorded cases of a media organisation being denied this defence for a non-contemporaneous court report because a claimant was able to show malice or lack of public interest in reporting court proceedings.

However, if an MP speaks in the Commons with the intention of frustrating a court order, and the media report his or her words with the same intent, will parliament wish to defend that reporting in the same way they do reports of court?

The legislative answer to that may significantly change the way the media reports parliament.

David Banks is co-author of McNae's Essential Law for Journalists and is a media law consultant


David Banks

The GuardianTramp

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