Protections for publication outside Parliament of parliamentary proceedings

13.6Although the privilege of freedom of speech protects what is said in debate in either House, this privilege does not to the same degree apply to the publication of debates or proceedings outside Parliament. But the publication, whether by order of the House or not, of a fair and accurate account of a debate in either House is protected by the same principle as that which protects fair reports of proceedings in courts of justice, that the advantage of publicity to the community at large outweighs any private injury resulting from the publication, unless malice is proved. Described as ‘qualified privilege’, this is a matter of common law, rather than of parliamentary privilege.1

An order of the House for their printing and publication does itself not confer the protection of parliamentary privilege on the publication of proceedings outside Parliament.2 But such an order may invoke the statutory protection provided by the Parliamentary Papers Act 1840 (see below).

In 1837, an action (Stockdale v Hansard )3 against the publisher of a report made to Parliament by a statutory body, and ordered by the House to be printed, succeeded on the ground that defamatory statements in the report were not privileged by virtue of the House's order for printing. In Lord Denman's judgment, a distinction was drawn between ‘what the House may order to be printed for the use of its members’, and what may be published and sold ‘indiscriminately’.4

The Parliamentary Papers Act, which became law shortly thereafter, in 1840, provides more generally that proceedings, criminal or civil, against persons for the publication of papers by order of either House of Parliament, shall be immediately stayed, on the production of a certificate, verified by affidavit, to the effect that such publication is by order or under the authority of either House of Parliament. Proceedings are also to be stayed, if commenced on account of the publication of a copy of a parliamentary paper, upon the verification of the correctness of such copy; and in proceedings commenced for printing any extract from, or abstract of, a parliamentary report or paper, the defendant may give the report in evidence under the general issue, and prove that his own extract or abstract was published bona fide and without malice; and if such shall be the opinion of the jury, a verdict in the defendant's favour will be entered.5

The provisions of the 1840 Act relating to printing of an extract or abstract of a paper (bona fide and without malice) were subsequently amended by the Defamation Act 1952, s 9, so as to include publication by broadcasting by wireless telegraphy, and by the Broadcasting Act 1990, sch 20, to cover ‘including in a programme service’ (defined in s 201).6 This provision would include social media.

Comment, or publication in a form other than an extract or abstract, is not privileged.7 In 2010 a court injunction which had been granted against a newspaper had the effect of preventing the publication in that newspaper of the text of a parliamentary question which related to the matters covered by the injunction.8

As regards the publication of debates, the judgment in Wason v Walter9 in 1868 established that the publisher of a report of a parliamentary debate is protected from actions for defamation if the whole debate is published, and enjoys qualified privilege for the publication of extracts from debates. The decision is founded not on parliamentary privilege or the Act of 1840, but on the principle that the publication of the proceedings of Parliament should be protected on the same footing as those of courts of justice: ‘that the occasional inconvenience to individuals arising from it [publicity being given to the proceedings of courts] must yield to the general good’.10

Slightly over a century later, the courts decided on appeal that the reporter who wrote a parliamentary ‘sketch’ was entitled to select that part of a debate which appeared to him to be of special public interest, and such a sketch would be privileged if made fairly and honestly. As a result, the sketch in question was entitled to qualified privilege and a jury's award of damages, against which the appeal had been lodged, was set aside. Lord Denning MR observed that ‘fairness in this regard means a fair presentation of what took place as it impressed the hearers. It does not mean fairness in the abstract between [the plaintiff] and those who were attacking him’.11

Fair and accurate reports of the proceedings in public of a legislature anywhere in the world, and similar copies of or extracts from matter published by or on the authority of a legislature have qualified privilege at law, without explanation or contradiction, unless the publication is made with malice.12

A study of the protection both absolute and qualified afforded to the publication of proceedings in Parliament was undertaken by the Joint Committee on that subject in 1969–70, following that of the Commons Select Committee on Parliamentary Privilege in 1966–67, and subsequently by a Joint Committee in 1977 and a Commons Select Committee in 1982,13 as far as concerned sound recording of proceedings. The 1999 Joint Committee concluded its consideration of the matter with a recommendation that the 1840 Act be replaced with a modern statute.14

In 2011, the Joint Committee on the draft Defamation Bill recommended that there should be absolute privilege for any fair and accurate report of proceedings in Parliament,15 but the Joint Committee on Privacy and Injunctions recommended only that reports of such proceedings should enjoy qualified privilege.16 In a Green Paper on Parliamentary Privilege, the Government rejected the proposition that reports should enjoy absolute privilege, citing the possibility ‘of the media passing private information covered by a court injunction to Members, encouraging them to use the information in parliamentary proceedings, and then reporting on those proceedings in the knowledge that no legal consequences can follow.’17 The 2013 Joint Committee on Parliamentary Privilege similarly did not accept that ‘full freedom of expression in Parliament is dependent on a similar freedom being enjoyed by the media’, and repeated the recommendation that the 1840 Act be replaced with a modern statute.18

Hansard, transcripts of evidence taken before select or public bill committees and other House papers such as the Order Paper or Votes and Proceedings are published on the internet on the authority of the two Houses and as such attract protection under the 1840 Act.

Footnotes

  1. Wason v Walter (1868–69) 4 QB 73, esp at 93. Even before statutory protection was given to ‘proceedings in Parliament’ by the Bill of Rights 1689, an individual who delivered to a select committee printed copies of a petition containing ‘false and scandalous’ allegations nevertheless received judgment in his favour in Lake v King (1667) 83 ER 387, 84 ER 226, 290, 312, 415, 417, 506, 526, 85 ER 128, 137 since the committee had power to examine the truth and falsehood of the petition, and it was the order and course of proceedings in Parliament to print and deliver copies of petitions. A fair and accurate report of proceedings in public of a legislature anywhere in the world is protected by qualified privilege: see the Defamation Act 1996, sch 1.
  2. See eg the remarks of Lord Denman on R v Dangerfield in Stockdale v Hansard (1839) 112 ER 1112.
  3. For fuller details, see para 16.3.
  4. (1837) 112 ER 1168–73, 1177–78. See CJ (1941–42) 123 for a Report which the House ordered to be printed for the use of Members only.
  5. Under the provision of this statute the action of Harlow v Hansard was stayed on 14 July 1845 by Wightman J in chambers, on the production of the Speaker's certificate. In the case of Houghton v Plimsoll (1874) Times, 2 April, Baron Amphlett directed the jury that the report of a Royal Commission, presented to Parliament by command of Her Majesty, came within the provisions of the Act, ‘since it was a report which had been adopted by Parliament, and of which a distribution of copies had been ordered by Parliament’. This judgment was followed in Mangena v Edward Lloyd Ltd (1908) 98 LT 640, an action for libel brought in respect of statement contained in an extract from a paper presented to Parliament by command of His Majesty. The judge, however, observed (at 644) that the 1840 Act protected only those who published a command paper by printing: reading it out at a meeting, for example, was not protected. The decision in that case, the proceedings of which were presented to both Houses (see Cd 4403), was followed in Mangena v Wright [1909] 2 KB 958. Papers presented by command are not, however, printed by order of either House, and notwithstanding these judgments, where the protection of the Parliamentary Papers Act is particularly desired, the normal practice is for a paper presented in response to an order for a return to be ordered to be printed (see paras 7.30–7.33 ). For a commentary on the protection afforded by the 1840 Act to reports of parliamentary proceedings in criminal cases, see Committee of Privileges, First Report, HC 667 (1977–78) and Second Report, HC 222 (1978–79).
  6. The matter of the application of the law of defamation to broadcasts of parliamentary proceedings was studied by the Joint Committee on the Publication of Proceedings in Parliament (HL 26, HC 48 (1969–70)) and the Joint Committee on Parliamentary Privilege (HL 43-I, HC 214-I (1998–99) paras 358–61).
  7. It was decided in the case of Dingle v Associated Newspapers Ltd [1961] 2 QB 162 that damages arising from the publication of unprivileged material should not be reduced on the ground that a plaintiff had acquired a bad reputation by reason of the publication of a select committee's report. See also para 16.7.
  8. See Second Report from the Culture, Media and Sport Committee, HC 362 (2009–10) paras 94–102. The case concerned a so-called ‘super-injunction’, ie one where the fact of the injunction was known to the parties but was otherwise to be kept confidential.
  9. [1868–69] 4 QB 73.
  10. [1868–69] 4 QB 88 ff. In giving judgment, Lord Cockburn CJ distinguished between the publication of documents covered by the Parliamentary Papers Act 1840 and that of debates. The use in argument of cases involving parliamentary privilege he dismissed as ‘very wide of the present question’ (ibid 84, 91, 92). In making a complete analogy between reports of proceedings in courts and those of Parliament, he added that the limitations on one attach to the other, and a ‘garbled or partial report or of detached parts of proceedings, published with intent to injure individuals, will be equally disentitled to protection’ (ibid 94).
  11. Cook v Alexander [1973] 3 WLR 617, esp at 623.
  12. Defamation Act 1996, s 15 and sch 1. The scope of the protection afforded by the section extends to local legislatures and the European Parliament. It does not, however, cover the publication to the public (or a section of the public) of matter which is not of public concern, and the publication of which is not for the public benefit. Nor does the Act cover the publication of matter where such publication is prohibited by law. Fair and accurate copies of or extracts from notices or other matter issued by or on behalf of a legislature in any member State of the European Union or the European Parliament for the information of the public enjoy qualified privilege, subject to explanation or contradiction, unless their publication is shown to have been made with malice.
  13. Joint Committee on the Publication of Proceedings in Parliament, Second Report, HL 109, HC 261 (1969–70); HC 34 (1966–67); Joint Committee on Sound Broadcasting (HL 123, HC 284 (1976–77)); and Select Committee on Sound Broadcasting, First Report (HC 376 (1981–82)). The matter was also dealt with by the Faulks Committee on Defamation, 1975 (Cmnd 5909) paras 203–10, 216–26.
  14. HC 43 (1998–99) para 374.
  15. Joint Committee on the Draft Defamation Bill, First Report of Session 2010–12, Draft Defamation Bill, HL 203-I, HC 930-I, para 51.
  16. Joint Committee on Privacy and Injunctions, First Report of Session 2010–12, Privacy and Injunctions, HL 273, HC 1443, para 241.
  17. HM Government, Parliamentary Privilege, Cm 8318, April 2012, para 311.
  18. Joint Committee on Parliamentary Privilege, First Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100, paras 187, 195–96.