Qualified Privilege
Qualified Privilege as a Defence in Defamation (May 2025)
Introduction
In English defamation law, qualified privilege is a defence that protects certain communications made in good faith and in particular contexts. Unlike absolute privilege, which gives complete immunity for statements in Parliament or court, regardless of motive, qualified privilege applies only if the statement is made on a proper occasion and without malice. The classic definition comes from Adam v Ward [1917] AC 309, where a “privileged occasion” was described as one where the person making the statement has “an interest or a duty, legal, social, or moral” to communicate it to the recipient, and the recipient has a corresponding interest or duty to receive it.
Common Law Qualified Privilege
At common law, qualified privilege arises in two main circumstances:
1. Duty and Interest
- An employer giving a reference for a former employee.
- A person making a complaint to the police.
- A member of the public informing an authority about misconduct.
2. Common Interest
- Company directors discussing internal governance issues.
- Members of an association exchanging information relevant to the association’s affairs.
Additionally, a person may be protected by qualified privilege when making a proportionate response to defamatory allegations, sometimes referred to as a “right of reply”.
A key case is Horrocks v Lowe [1975] AC 135, which clarified that the defence requires the defendant to have honestly believed in the truth of the statement. Even an unreasonable or prejudiced belief may be protected, provided it was genuine. However, if the defendant steps outside the bounds of the occasion, for instance by acting maliciously or without any belief in the truth of the allegation,then the privilege is lost.
Common law qualified privilege generally only applies where the communication is made to a restricted audience. Broad publication to the public (e.g. in newspapers or online) typically does not qualify unless it is supported by statutory or public interest defences.
Statutory Qualified Privilege: Defamation Act 1996
The Defamation Act 1996 sets out specific categories of communications to which qualified privilege applies under statute. Section 15 and Schedule 1 of the Act list publications that benefit from this defence.
Part I of Schedule 1
- Fair and accurate reports of proceedings in public of legislatures anywhere in the world.
- Reports of court proceedings.
- Notices or documents issued for public information by government authorities.
- Information contained in public registers.
Part II of Schedule 1
These publications are subject to explanation or contradiction, meaning that the publisher must allow the defamed person a reasonable opportunity to reply. They include:
- Reports of certain public meetings.
- Statements by public companies or professional associations.
- Reports of press conferences and other gatherings on matters of public interest.
In both categories, the protection will be lost if the publication was made with malice.
Statutory Developments: Defamation Act 2013
Section 6 – Peer-Reviewed Academic Statements
Section 6 protects statements published in peer-reviewed scientific or academic journals. This applies where:
- The statement relates to a scientific or academic matter.
- It was subject to an independent peer review process.
The defence is defeated if the statement was made with malice.
Section 7 – Extension of Privilege
Section 7 broadened the list of privileged publications by amending the 1996 Act to reflect developments in global media. It extended qualified privilege to:
- Fair and accurate reports of scientific conferences.
- General meetings of public companies.
- Reports of press conferences on matters of public interest.
The Reynolds Defence and the Section 4 Public Interest Defence
Historically, courts recognised a form of qualified privilege for journalistic reporting on matters of public interest through the case of Reynolds v Times Newspapers Ltd [1999] UKHL 45. This “Reynolds privilege” required responsible journalism and compliance with ten factors relating to verification, urgency, sourcing, and editorial care.
The Defamation Act 2013 abolished the Reynolds defence and replaced it with a statutory equivalent.
Section 4 – Public Interest
Section 4 provides a defence where:
- The statement complained of was, or formed part of, a statement on a matter of public interest; and
- The defendant reasonably believed that publishing the statement was in the public interest.
This is an objective test focused on the reasonableness of the belief at the time of publication. Courts will consider all the circumstances, giving appropriate weight to editorial judgment.
The Section 4 defence is broader than the common law Reynolds defence and is available to all publishers, not just the media, provided the conditions are met. However, as with all forms of qualified privilege, the defence will be defeated by malice.
Malice
The hallmark of qualified privilege is that it can be defeated if the claimant proves that the defendant acted with malice. In legal terms, this means the defendant either:
- Did not believe the statement to be true, or
- Acted from a dominant improper motive (such as spite or revenge).
The burden of proving malice lies with the claimant, and it is not enough to show carelessness or poor judgment. The courts require evidence that the defendant acted dishonestly or with a motive unrelated to the proper function of the occasion.
In Horrocks v Lowe, the House of Lords confirmed that a defendant’s honest belief, even if mistaken, is sufficient to preserve the defence. Only a conscious indifference to the truth or a hidden agenda will strip away the protection.
Conclusion
Qualified privilege plays a central role in balancing the protection of reputation with the right to freedom of expression. It allows people to speak candidly in defined contexts—such as giving references, reporting misconduct, or informing the public on matters of legitimate concern, without fear of defamation liability, provided they act honestly and without malice.
The defence applies both at common law and by statute, with specific protections for media reporting, public meetings, academic debate, and journalistic commentary in the public interest. However, the privilege is always conditional upon responsible conduct. Where malice is present, the defence will fail.
For clients facing a defamation claim, or wishing to assert a defence, qualified privilege remains a powerful but complex legal doctrine, requiring careful analysis of the facts and the nature of the communication.
Further Reading
Explore Our Defamation Services
For an overview of our services and how we support clients in defamation matters, visit our main defamation page.
Contact Carruthers Law
If you believe you have been defamed or require legal advice on whether a defence such as qualified privilege may apply, our expert defamation solicitors are here to assist you.
Call us on 0151 541 2040 or email info@carruthers-law.co.uk for a confidential consultation.
You can also visit our Contact Page to submit an enquiry online.