10th March 2022
On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:
Bob Seely – A number of lawyers, representing oligarchs, have written threatening letters to national newspapers saying that reporting our words can be unlawful & seriously defamatory… they're now trying to intimidate Members of Parliament pic.twitter.com/57G4n3iH4E
— Haggis_UK 🇬🇧 🇪🇺 (@Haggis_UK) March 9, 2022
What Seely said is set out on the ‘They Work For You’ website:
And it has been published in Hansard:
What has struck many about what Seely said is that reporting parliamentary debates could be actionable under the law of defamation.
Surely, some thought, reporting what is said in parliament has absolute privilege – that is legal protection – from any law suit.
Well.
The legal position is not straightforward – though you may think it should be.
And the unsettling answer is that you can be sued for reporting things said in parliament.
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First there needs to be a distinction.
What MPs and peers themselves say in parliament does have absolute privilege.
This protection is provided by the Bill of Rights:
“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.
(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)
This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.
The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.
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But.
Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.
The protection is instead ‘qualified’ – and so is subject to a condition.
This condition is (in general terms) that the report – or other repetition – is not malicious.
(This condition is the general effect of the august Parliamentary Papers Act 1840 and the Defamation Act 1996.)
This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.
The onus is on the claimant to show this malice.
So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.
The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.
But nothing at law stops them issuing the threats.
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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.
For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.
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There is the eternal question of what constitutes ‘malice’.
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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.
As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:
I’m not suggesting it’s effective (suspect they will be cautious) but SRA can investigate and prosecute if circs right https://t.co/PDYvF6ORFS
— Richard Moorhead (@RichardMoorhead) March 9, 2022
The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:
In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.
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Perhaps there should be further protections.
For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.
Perhaps this should be extended to defamation threats.
And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.
Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.
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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.
Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.
And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.
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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.
It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.
But it is gap that has not yet been filled.
And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.
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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.
Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.
(And to demonstrate my own personal lack of malice – this is a link to how Trafigura’s lawyer saw what happened.)
So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.
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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.
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This is a tangential point, but as you have raised the Bill of Rights, and quoted the relevant section, I couldn’t resist.
“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
It struck me some time back that the law there quite specifically refers to proceedings *in* parliament: it doesn’t appear to prohibit legal proceedings against parliament itself…
The words treason, oaths taken on entering profession, attempt to usurp parliament, come to mind.
I personally would welcome a few instances of lawyers for these companies being brought in for questioning by organisations like MI5 – maybe months at a time…..
More importantly, the men they are trying to protect are complicit with the tyranny of the Russian regime, they deserve all their property, wealth that can be confiscated to be confiscated and it to be unilaterally re-distributed to the refugees, excess kept in trust for the re-building of Ukraine. All that it needs, 1 hour of Parliamentary time to enable the legislation with a date of enforcement being the same day. Further, as you suggest, it should be made illegal for any person / organisation to threaten the reporting of Parliament – how about 20 year imprisonment, confiscation of all assets.
Russia has in effect declared war on Western democracy, we should start treating it as such, go after the enablers, shut down those countries that are supporting, (hint the one in the far east), by stopping them trading with us too. Time that we started making all those things that we made before the wholesale transfer brought on by the Thatcher/Reagan experiments.
I think I can agree with your sentiment, even if we may differ on the finer points of your proposed remedies. However, may I offer an alternative suggestion.
David has explained the intersect between the use of the law for the purpose of intimidation and the use of the law for the purpose of protecting against libel or slander.
If it were possible to do two things:-
1. Provide greater clarity in terms of what has to be demonstrated for either a libel or slander case to be considered viable;
2. Establish very clear and explicitly-defined consequences for any legal practitioner making SLAPP-like threats,
then those wishing to use the law in this way would very quickly find themselves short of a law firm wishing to represent them. No sane legal professional would risk disbarment – and perhaps sanction for companies employing them – if such rules were clear and vigorously enforced.
This should not discourage those with legitimate grounds for complaint from stepping forward, nor would it inhibit the legal profession from representing them, but it might serve to curb excesses such as this.
I’m sorry for straying slightly off topic with this additional thought, but this article reminded me of another dimension to this challenge, which I’ll illustrate with an example. In 1994, actor Craig Charles (“Lister” on “Red Dwarf”) and another man were accused by a former girlfriend of Charles of rape and indecent assault. The case went to trial and Lister was acquitted of all charges. I didn’t follow it closely at the time, but immediately following the acquittal I read an opinion piece about the imbalance of legal protections in a case like this: the plaintiff sought and obtained anonymity and the press were prohibited from naming them, but Charles, a well-known actor, became the subject of numerous articles in the tabloid press. I recall thinking at the time that any arrangement in a case like that – where mere association with it can have a significant negative connotation for a public figure like an actor, could have been handled in a better way. As I’ve commented here before, we are in theory “all equal in the eyes of the law”.
That certainly wasn’t the case for Craig Charles, who had his name dragged through press reports whilst his accuser – whose accusation were shown to be false (and, one could presume, malicious, under the circumstances), remained safely anonymous.
I may be wrong (I often am!) but sometimes I feel that although we often see legal arguments cite case law and established precedent – such that current and future cases can learn from and remain consistent with prior application of the law, we don’t see the *practice* of law learn in quite the same way. At least, it doesn’t feel like it to this observer. Happy to be corrected.
This is not a learned comment, but I had to tip my hat to you for the wonderfully tangential reference to Roy Chubby Brown. Who, indeed, is Malice?!
As always, excellent understated Brummie humour and logic. Segueing into ‘Living next door to Alice’ from a discussion about malice. Brilliant, and that is from a Blues fan.
A journalist doing their job reporting what happens in Parliament should not run the risk of being sued for libel when the MP who said what they reported is protected. Malice shouldn’t come into it. It may be hard to prove malice but wealthy people have the best lawyers and the biggest clout.
Democracy needs a free press and that freedom should be properly protected by the law. Currently the wealthy can intimidate journalists by threatening libel action. Perhaps if they had to sue the paper that publishes the journalist, not the journalists personally, it might even things up.
Good point about baseless allegations of IP infringement, but this is about protecting free competition. Perhaps we need similar protection for free speech.
As a Barrister once said to me there are some real crooks practicing law.
I am quite sure that there are Solicitors willing to sail very close to the wind for their clients and given what they can afford they will take a risk for the wealthy.
As a ‘for example’ a former neighbour of mine was threatened with legal action over a balcony that overlooked as adjoining house’s new swimming pool. Apart from planning issues being dealt with by the local authority a quick trip to the town hall would have revealed that it had full planning & building regs consent.
It ended up with the plaintiff having to pay my neighbours costs, sadly it didnt include a complaint about the plaintiffs solicitors.
I do wonder if the SRA might start taking a look at potentially vexatious claims.
I prefer Smokie’s version, now recently remastered — https://www.youtube.com/watch?v=L4pp3qyq5tc. I first heard it on New Years Eve of Dec 31, 2000 while living in south central Germany. A bunch of us were in our local German pub/restaurant as the new year approached and the song came up. Naturally, we all sang the chorus raucously each time it came up. We and the owners, who were German and singing along, were the only ones there.
My recollection of the Trafigura case is that, notwithstanding the clever words of their lawyer and the interesting way in which the injunction and superinjunction were circumvented, a key point (which the CR Lawyer fails to mention) is that the events described by Paul Farrelly MP using his privilege were in fact real events.
The effect of the law should not be to protect people or companies that indulge in wrongdoing.
In various recent House of Commons debates a number of individuals have been mentioned by MPs. One MP went so far as to read in to the record a list of individuals.
I wondered about the defamation aspect of even including a link to Hansard in a blogpost.
It ought to be put beyond doubt that accurate quotation of what was said in Parliament and links to Hansard have the protection of absolute privilege.
It should also be put beyond doubt that witness evidence to select committees is fully protected. Those asking the questions in such committees expect (rightly) full and complete answers. Why should a witness have to hold back for fear of a defamation acton?