What is Absolute privilege ?

May 10, 2025

Absolute Privilege as a Defence to Defamation (May 2025)

Introduction

Defamation law in England and Wales aims to protect individuals’ reputations from false and harmful statements. However, the law also recognises certain occasions where freedom of speech is so crucial that those who speak are completely immune from defamation liability. Absolute privilege is one of the most powerful defences in defamation: if it applies, it provides a complete bar to any claim, regardless of how false or malicious the statement might be. In effect, a statement made on an occasion of absolute privilege can be said to “attritute” any liability, the maker of the statement cannot be sued for defamation over it.

Refer to our glossary of defamation terms to understand key concepts.

What is Absolute Privilege? 

Absolute privilege in defamation is a complete defence. When a statement is protected by absolute privilege, no defamation claim can succeed in respect of it. This remains true even if the statement is entirely false or was made with malice. The underlying rationale is grounded in public policy: in certain contexts, it is considered more important to protect free and uninhibited communication than to provide a legal remedy for reputational harm. In other words, the law balances two competing public interests, on one hand, protecting individuals from unjustified slurs, and on the other, ensuring open discussion in vital forums, and in specific settings the latter prevails.

The breadth of absolute privilege reflects a judgement that the risk of an occasional injustice to an individual’s reputation is an acceptable price for the greater good of unfettered speech in certain arenas. It applies to the three classic branches of government – legislative, judicial, and (to a degree) executive functions, where public duties require frankness. Importantly, unlike other defences, absolute privilege cannot be defeated by proof of malice or any improper motive. Even a speaker who knowingly lies in a protected context is shielded from defamation liability. The only remedies against such abuse of privilege are non-judicial: for example, perjury charges for false testimony on oath, or internal disciplinary actions for parliamentary speech. Below we examine the principal categories of absolute privilege in English law, namely: (1) statements in Parliament; (2) statements in judicial proceedings (including courts and similar tribunals, as well as communications preliminary to litigation); (3) certain official communications by high officers of state; and (4) fair and accurate reports of court proceedings as provided by statute.

Parliamentary Proceedings

Perhaps the most historically significant form of absolute privilege is parliamentary privilege, the complete immunity of Members of Parliament and peers (as well as others taking part in Parliament) from being sued or prosecuted for what they say or do during proceedings in Parliament. This principle dates back centuries and is enshrined in Article 9 of the Bill of Rights 1689. In practical terms, this means no civil or criminal action (including defamation) may be brought on the basis of statements made in the Houses of Commons or Lords. The immunity is absolute and unconditional. As a Joint Committee of Parliament observed, Article 9 “protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly.” In other words, even deliberate lies told in the course of parliamentary proceedings are immune from defamation claims. The purpose behind this protection is to guarantee free and uninhibited debate in Parliament. Members must be able to raise contentious issues, criticise individuals (however powerful), and speak fearlessly on matters of public concern without fear of litigation or any outside interference.

The scope of parliamentary absolute privilege is broad. It covers not only speeches in the chambers during debates, but anything said or done “in the course of, or for the purposes of or incidental to” any parliamentary proceedings. This extends to statements made in parliamentary committees, submissions of evidence to committees, and even documents produced as part of proceedings. Crucially, courts will not allow statements made in Parliament to be used or examined in legal proceedings outside Parliament, if doing so would amount to “questioning” those proceedings. For example, in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (QBD), an MP was sued for allegedly defamatory remarks he repeated on television. The claimant tried to cite the MP’s earlier comments in the House of Commons as evidence of malice, but the court forbade this – nothing said in Parliament could be used to support a legal action elsewhere. This principle preserves Parliament’s autonomy and prevents litigants from indirectly impugning MPs for their parliamentary speech.

Absolute privilege in Parliament also covers official parliamentary publications. After an infamous clash between Parliament and the courts in the nineteenth century (Stockdale v Hansard (1839) 9 Ad & E 1), Parliament passed the Parliamentary Papers Act 1840 to ensure that authorised publications of parliamentary proceedings are absolutely protected. Section 1 of that Act provides that no civil or criminal proceedings can be brought in respect of the publication of any report, paper, votes or proceedings published by order of either House. In effect, Hansard (the official transcript of debates) and other papers published under parliamentary authority enjoy absolute privilege by statute. (The 1840 Act also gives a lesser protection to extracts or summaries of parliamentary material – a form of qualified privilege when published in good faith, but the official publications themselves are fully immune.)

Judicial Proceedings – Statements in Courts of Law

The courts have long recognised an absolute privilege for statements made in the course of judicial proceedings. Judges, barristers (advocates), parties, and witnesses are all protected from defamation liability for words spoken or written in the context of live court proceedings. The rule is well-established at common law: “Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege… against claims for defamation.” The rationale mirrors that of parliamentary privilege. The public interest in the administration of justice requires that participants in trials or hearings can speak freely, without fear of being sued, so that the court can have all relevant evidence and argument before it. If a witness or lawyer had to worry about a defamation suit for what they say in court, it could deter candid testimony or zealous advocacy, to the detriment of truth-finding and justice.

Absolute privilege covers all kinds of courts, from the highest appellate courts down to magistrates’ courts, and extends to civil and criminal proceedings alike. The protection is sweeping: any statement made in the course of the proceedings is protected, regardless of its content or motive. English case law makes clear that even defamatory statements which are irrelevant, gratuitous, or malicious fall under the privilege. For instance, in Munster v Lamb (1883) 11 QBD 588 (CA), the Court of Appeal held that a barrister could not be sued for defamatory allegations made about a party while conducting a case, even if those remarks were not strictly relevant to the issues. The court acknowledged it might appear “illogical” to shield a lawyer who “deliberately and maliciously slanders another person”, but it reasoned that to allow any opening for liability would chill the advocacy of others acting in good faith. Likewise, a witness who gives evidence in court enjoys absolute immunity from defamation claims, even if the witness lies or acts maliciously. The only sanction for perjury or false testimony is a criminal perjury prosecution, not a civil suit for libel or slander. In short, no action lies against any participant for what is said in court.

The privilege for judicial proceedings is not confined to oral statements in open court. It embraces all statements made in the course of the legal process, including pleadings, witness statements, affidavits, and other documents submitted in court proceedings. For example, a defamatory allegation contained in particulars of claim or in a defence is just as protected as if spoken aloud in the courtroom. Even remarks made by a judge in a judgement or by an advocate in written submissions are covered. The immunity is not lost just because a statement was unnecessary or outside the main issues, so long as it occurred in the course of proceedings, it remains absolutely privileged. This generous scope is designed to avoid satellite litigation over whether a particular statement was sufficiently relevant or within the scope of the proceeding; the privilege attaches essentially per occasion (the judicial proceeding), not per exact content.

Communications made in the course of judicial proceedings attract absolute privilege.
Understand the nuances between absolute and qualified privilege.

Communications Preliminary to Litigation 

Absolute privilege for judicial proceedings also extends to certain communications made outside the courtroom but closely related to contemplated or ongoing proceedings. The policy is to protect the entire process of justice, including preparation and preliminary steps, not just the final courtroom hearing. A leading example is the decision in Watson v M’Ewan [1905] AC 480 (HL) where the House of Lords held that statements made by a prospective witness to a solicitor, when the solicitor was gathering evidence for an upcoming trial, were covered by the same absolute privilege as the witness’s eventual court testimony. In other words, a witness is absolutely privileged not only for what they say on the stand, but also for what they say to a lawyer beforehand as part of the process of giving evidence. The reasoning is straightforward: if witnesses could be sued for what they say during pre-trial interviews or in witness statements, they might be deterred from cooperating fully, which would undermine the administration of justice. English courts have recognised that communications “preliminary to a proposed judicial proceeding” are protected to the extent they are part of the due process of preparing for litigation. This covers, for instance, the content of draft witness statements, expert reports prepared for use in court, or correspondence between parties’ solicitors that is directly related to pending litigation.

A particularly important application of this principle is that information or complaints provided to the police or regulators about suspected wrongdoing are treated as absolutely privileged. When a person reports a crime or wrongdoing to law enforcement, that act is viewed as the first step in invoking the judicial process, akin to giving a witness statement, and English law strongly favors protecting it. Thus, a person cannot be sued in defamation for statements made in good faith to the police about a suspected offender (even if those allegations later turn out to be unfounded).

The courts have reasoned that the public interest in encouraging free communication to the police (so that potential crimes are investigated) outweighs the potential harm to the reputation of the accused.

Most recently, the High Court has indicated that even mandatory pre-litigation communications (such as those exchanged under formal Pre-Action Protocols in civil cases) attract absolute privilege. In Dr Jabbar v Aviva, a libel case decided in 2022, a Deputy Master of the High Court had to determine whether statements made in correspondence under the Pre-Action Protocol for Low Value Personal Injury Claims (specifically, questions to a medical expert under the Road Traffic Accident protocol) were protected by absolute privilege. The court ruled that they were: communications exchanged as part of a pre-action protocol procedure were essentially an extension of the judicial process and should be afforded the same absolute immunity. The judge noted this was a necessary development, since it would be artificial to draw a distinction between statements made once formal proceedings have commenced and those made just beforehand in compliance with procedural protocols. This decision reflected the principle that the categories of absolute privilege are not closed, the court can extend the privilege to new situations where “strictly necessary” in the interests of justice. The result is that parties and their lawyers can engage in candid pre-litigation communications (such as claim letters, response letters, and expert inquiries under the protocols) without fearing a defamation claim if, for example, they must allege fault or question a professional’s conduct in those communications. While this is a relatively recent and lower court decision, it underscores the judiciary’s commitment to ensuring free and frank exchange of information in all stages of the legal process.

Tribunals and Quasi-Judicial Proceedings

Absolute privilege is not limited strictly to traditional courtrooms. English law also grants absolute privilege to statements made in proceedings of tribunals or inquiries that are of a judicial or quasi-judicial character. The key question is whether the body in question functions in a manner similar to a court of justice, if so, the same public policy (ensuring participants speak freely) applies.

Lord Diplock in Trapp v Mackie set out guidelines for determining which tribunals attract absolute privilege. The factors include: (1) under what authority the tribunal is established; (2) the nature of the issue or dispute it must inquire into; (3) the procedure it follows (for example, does it hear evidence on oath, allow cross-examination, etc.); and (4) the legal consequences of its decisions or findings. Essentially, if a tribunal is “an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes, meaning it is legally constituted, addresses a defined question, follows a judicial-style procedure, and its outcome has official weight,then absolute privilege will attach to statements made in those proceedings. Examples can include professional disciplinary hearings (for doctors, solicitors, etc.), certain public inquiries and tribunals, and even some arbitrations or adjudications, provided they meet the criteria of acting in a judicial capacity.

This doctrine ensures that witnesses and others participating in such quasi-judicial forums have the same freedom to speak without fear as they would in a courtroom. It acknowledges that these proceedings often have serious consequences (loss of professional status, dismissal from office, etc.) and therefore require the same level of candour. For instance, a witness testifying in a solicitor’s disciplinary tribunal, or a police officer giving evidence in a police misconduct hearing, or a teacher speaking before a school board inquiry, cannot be sued for defamation based on their testimony (assuming the tribunal is one recognised by law to have a judicial function).

Overall, the category of tribunals covered by absolute privilege remains flexible but bounded by the need for formality and legal authority. When in doubt, the tendency has been to err on the side of protecting speech in proceedings that bear any significant resemblance to judicial processes, so as not to undermine their efficacy by the spectre of defamation litigation.

Governmental and Executive Communications

Beyond Parliament and the courts, English law has recognised a narrower category of absolute privilege for certain official communications by members of the executive branch of government. The clearest example stems from the case Chatterton v Secretary of State for India in Council [1895] 2 QB 189. In that case, a defamatory statement was made in a letter sent by the Secretary of State for India to a junior minister (the Under-Secretary) in the course of formulating a response to a parliamentary question. The Court of Appeal held that this communication was subject to absolute privilege. The reasoning was that high officers of state must be able to communicate frankly with one another on official matters – especially when helping a minister answer to Parliament, without fear of defamation claims. Thus, where a statement is made by a Minister or other high executive officer in the discharge of their duties and is closely linked to parliamentary or governmental business, it may attract absolute privilege.It is important to note that this branch of absolute privilege is quite limited. It essentially covers high-level governmental communications that are part of the process of governance and accountability to Parliament.

It is uncertain how far down the chain of command this absolute immunity goes. It has been doubted whether officials below ministerial rank could claim absolute privilege for defamatory statements in internal communications. For example, if a middle-ranking civil servant writes a memo about someone that is defamatory, it is unlikely to be absolutely privileged (though it might be protected by qualified privilege if made in the line of duty without malice). The absolute privilege for executive communications appears to be reserved for those at the top of government hierarchy, where the public interest in uninhibited communication is strongest,  such as ministers corresponding about state matters, or possibly communications between heads of state departments. The Chatterton principle has rarely been invoked in modern times, partly because most intra-government communications that might be defamatory can be handled under qualified privilege. However, the principle still stands: the law will, in appropriate cases, shield executive officers performing core governmental functions from defamation liability, in order to allow them to speak and write freely in the course of duty.

A related facet of executive privilege overlaps with the earlier discussion of communications to police or regulators (which can be seen as communications to the executive branch in its law-enforcement capacity). As noted, those are protected due to their judicial connection. Additionally, certain statutorily required reports by public officials may be explicitly given absolute privilege by law. For instance, reports by the Comptroller and Auditor General to Parliament are absolutely privileged to ensure he can report candidly on government finances. While not an everyday scenario, it exemplifies how the executive’s essential functions, when intertwined with public interest reporting or parliamentary oversight, are safeguarded by absolute privilege.

Statutory Absolute Privilege for Reports of Proceedings

In addition to the common law categories above, statute law provides specific instances of absolute privilege, notably for certain reports of legal proceedings published in the media. Under Section 14 of the Defamation Act 1996, a fair and accurate report of public judicial proceedings is protected by absolute privilege, provided it is published contemporaneously. This means, for example, that a newspaper or broadcaster giving a fair and accurate account of what was said during a court hearing is immune from defamation suits brought by anyone who feels their reputation was harmed by the reported statements. The rationale is to encourage full and immediate reporting of court proceedings, as an aspect of open justice, without news organisations fearing legal repercussions for simply disseminating what was said in court. (If the media had to verify the truth of each allegation made in court before reporting it, or risk being sued, the public would effectively be denied timely information about court cases.) By classing such reports as absolutely privileged, the law ensures the media can act as the eyes and ears of the public in the courtroom, reflecting proceedings faithfully and promptly.

Originally, Section 14 of the 1996 Act applied to proceedings in any UK court, as well as certain European courts (like the European Court of Human Rights and European Court of Justice). The Defamation Act 2013 expanded this scope. Section 7(1) of the 2013 Act amended Section 14 to extend absolute privilege to fair and accurate reports of legal proceedings anywhere in the world. Now, a British publication can safely report on the proceedings of a foreign court or international tribunal, under the umbrella of absolute privilege, so long as the report is fair, accurate, and published contemporaneously. This is a significant protection for global news reporting. For instance, if a U.S. court case involves defamatory accusations about a person, a UK newspaper can report those courtroom accusations without liability (again, provided the reporting is fair and accurate and done in a timely way).

It’s important to emphasise that this statutory absolute privilege is tied to reportage of what occurred in court, not to any commentary or extraneous material. The privilege would not cover a journalist’s opinion or conjecture about the case, it strictly covers the report of the proceeding itself. As long as the report stays within those bounds and is an honest, contemporaneous summary of the proceeding, it is protected even if the statements reported are highly defamatory. For example, if during a trial a witness falsely accuses a person of serious misconduct, a newspaper can report that testimony (with attribution, e.g. “Witness X said Y about Person Z in court yesterday”) and Person Z cannot sue the newspaper for libel – the newspaper has an absolute privilege defence, just as the witness has an absolute privilege for the testimony.

Besides court reports, statute also confers absolute privilege on certain other limited publications. For example, by law some documents of international organisations or conferences may be given absolute privilege when published in the UK. Historically, absolute privilege was extended to reports of the United Nations and other international bodies by the 1996 Act (Schedule 1, now amended). These are fairly specific and less commonly invoked provisions, but they align with the idea that some proceedings and documents of international significance should be freely reportable.

Finally, to avoid confusion, it’s worth noting that outside these statutory grants of absolute privilege, many types of reports and publications (including fair and accurate reports of other public meetings or legislative bodies abroad) fall under qualified privilege, which is a different defence requiring absence of malice.

Conclusion

In the contexts of Parliamentary proceedings and judicial proceedings, it serves as a fundamental constitutional safeguard: Members of Parliament must be free to speak truth to power (or even falsehood, on rare occasions) in the public interest, and judges, lawyers, and witnesses must be free to administer and aid justice, without the chilling shadow of defamation litigation. The privilege has been sensibly extended to quasi-judicial tribunals and related communications, ensuring that wherever a process looks and feels like a court of justice, participants can operate with the same protections. It also touches the executive sphere at the highest levels, acknowledging that frank communication in governance occasionally warrants absolute protection.

In conclusion, absolute privilege remains a crucial defence in English defamation law, reserved for situations where the unfettered flow of information and opinion is vital to the public interest. It is a recognition that, in a society governed by rule of law and democratic ideals, certain communications, in parliament, in courts, and analogous settings,require complete protection to function effectively.

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