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Report No. 33

23. Qualified privilege.-

A privileged occasion (in reference to qualified privilege) is an occasion "where the person who makes the communication has an interest or a duty legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it"1.

1. See Lord Atkinson's judgment in Adam v. Ward, 1917 AC 309 (334): (1916-17) All ER Reprint 157 (170).

24. The classic statement as to an occasion of qualified privilege is that of Parke B.1 according to whom the defendant is liable for a defamatory publication "unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits"2.

1. Toogood v. Spring, (1834) I Cr M&R 181 (193): 3 LJ Ex 347: 149 ER 1044: (1824 to 1834) All ER Rep 735 (738), which has been described by Lord Shaw as holding "the leading place" in authority, in Adam v. Ward, 1917 AC 309: (1916-1917) All ER Rep 157 (175) (HL).

2. Generally as to qualified privilege, see Halsbury, 3rd Edn., Vol. 24, pp. 54, 56, paras. 97 to 100.

Discussion in a judgment of Scrutton L.J. may also be quoted1:-

"By the law of England there are occasions on which a person may make defamatory statements. These occasions are called privileged occasions. A reason frequently given for this privilege is that the allegation that the speaker has "unlawfully and maliciously published" is displaced by proof that the speaker had either a duty or an interest to publish, such duty or interest conferring the privilege. But communications made on these occasions may lose their privilege: (i) They may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (ii) they may be published with express malice, so that the occasion is not being legitimately used, but abused"

1. Watt v. Longsdon, (1930) 1 KB 130: 1929 All ER Reprint 284 (287-288).

The Defamation Committee state the legal position thus1:-

'Speaking very broadly "qualified privilege" at common law exists wherever the person publishing the defamatory statement (whether libel or slander) is under a duty to, or has an interest in, publishing it, and each person to whom it is published has a corresponding duty or interest in receiving it. In the course of the evidence submitted to us, little or no criticism has been directed towards this branch of the law of defamation-which is of vital importance to all members of the community and we do not recommend any change.'

1. Report of the Committee on Defamation (Porter Committee), (1948); Cmd. 7536, para. 96.

Section 44, Code of Criminal Procedure, 1898 Back

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