Law internal Assessment

Topic: Should the absolute privilege remain unchanged in this

Name: Dimitri Mitchell

Candidate number:
Year: 2016
Territory: Jamaica

Table of content
Title page.....................................................................................................1
Acknowledgement..4
Introduction.5
Aims and Objective.6
Description of methodology..7
Literature Review8

Discussion of findings.14
Recommendations..17
Appendix..18
Bibliography20

Acknowledgment
Thanks is extended to all persons who have helped me in the success of this research. All persons who have
contributed to this research are deeply valued and their contribution is well honored.

Introduction
This research is about the absolute privilege that is granted in parliament, should it remain or should it be changed
due to the technological age we now live in? In this research the issue which is highlighted mostly is the issue of the
broad casting of parliamentary proceedings. It could asserted that happenings in parliament is being communicated
to a third party, thus the absolute privilege would not fulfill its purpose. However there was a point where
parliamentary proceeding where not being broadcasted, but as time goes on the laws changed. Therefore should the
law be altered again at this point in our development? This research will draw a conclusion to answer this question.

Aims and objectives

Objectives:
1.
2.
3.
4.

Examine the aspect of absolute privilege as it relates to defamation

Description of methodology
Triangulation is the process of combining qualitative and quantitative methods to conduct a study base on a
particular sample. The researcher however have employed these methods of research to obtain factual information.
The researcher will also conduct an interview to obtain qualitative information for his research. The researcher will
be interviewing a 3rd year law student at the University of London.

In the researchers study two types of research methods are used, each having its advantages and disadvantages. The
disadvantage of the quantitative research is that the source maybe biased.
The disadvantage of the qualitative research is that the person who the information is obtained from my withhold
data that maybe crucial in the study.

The advantage of using the quantitative research method which is the close ended questionnaire is that it allows the
study of a wide sample. The disadvantage is that respondents may not answer the question given to them, truthfully.
The advantage is that the qualitative research methods gives precise information and the feeling of the person
towards the study.

Literature review
Based on the Common Wealth Caribbean Tort Law book defamation can defined as statements leveled at a person
either written or spoken that can affects a persons image. It goes on to say that the tort of defamation, which protects
a persons interest in his reputation, occupies a
Prominent place in Caribbean jurisdictions, as it does in most developing countries in which the common law
applies. There are two types of defamatory statements libel and slander.
As stated in Common Wealth Caribbean Tort Law, Libel is a defamatory statement in a permanent form, most
usually consisting of written words in a newspaper, book, pamphlet, printed notice or letter. It also includes
defamatory paintings, cartoons, photographs, effigies and films. Also, by s 3 of the Defamation Act, Cap 6:03
(Guyana) and s 3 of the Defamation Act (Jamaica), defamatory words in radio and television broadcasts are to be
treated as being in permanent form, that is, as libel. However Slander is a defamatory statement in a transient form,
principally by means of spoken words or gestures. To prove however either type of defamation plaintiffs must prove
the following elements. First the plaintiff must prove that the defendant made a false and defamatory statement
concerning the plaintiff. Second the plaintiff must prove that the defendant made an unprivileged publication to a
third party.

They are several defenses that are available against the tort of defamation namely, Justification, absolute privilege,
qualified privilege, and fair comment.
Absolute privilege however, is the defense the researcher is mainly concern with. It is said that Absolute privilege
allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain, special
situations no matter how malicious or false the information is. All proceedings in parliament and courts in England
and Wales and other common law jurisdictions are afforded absolute privilege, as is communication between a
solicitor and client. However will this principle still stand as it relates to the media broadcasting happenings in
parliament to the entire world to see? The fitzpatrick privilege case of 1955 gives insight on the penalties of breaking
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the absolute privilege by publishing to a third party. In the Fitzpatrick Privilege case, on the 3rd of May 1955,
Charles Albert Aaron Morgan, member of the House of Representatives for the electorate of Reid, New South Wales,
informed Parliament that an article appearing in the Bankstown Observer for 28 April 1955 had impugned his
personal honor and challenged his fitness to be a Member of Parliament.
In an article headed 'MHR and Immigration Racket', it was alleged that Morgan, a lawyer before entering Parliament,
had engaged in corrupt schemes involving refugee migration from Europe to Australia before World War II.
The Bankstown Observer, a free weekly newspaper distributed throughout areas of suburban Sydney that included
the Reid electorate, was owned by Raymond Edward Fitzpatrick, a Bankstown businessman and political rival of
Morgan. Morgan ended his speech by moving that the newspaper article be referred to the House of Representatives
Standing Committee of Privileges (the 'Privileges Committee') for investigation. The House approved the motion.
Over the ensuing weeks, the Privileges Committee met on a number of occasions to deal with the matter. Morgan,
Fitzpatrick and Frank Courtney Browne (the editor of the Bankstown Observer at the time) appeared before the
Committee and were questioned by its members. The Committee report, presented to the House of Representatives
on 8 June 1955, concluded that a breach of privilege had occurred and recommended that the House take appropriate
action.
The House determined that Browne and Fitzpatrick be required to appear before the Bar of the Chamber on 10 June
1955 to answer the charges brought against them. Having heard statements from both men, the House, on a motion
from Prime Minister Robert Menzies, voted that Browne and Fitzpatrick be committed to 90 days in jail. Subsequent
appeals to the High Court of Australia and the Privy Council were unsuccessful and the sentences were served in the
Canberra police lock-up and Goulburn jail. In this case however Fitzpatrick the editor of the banks town observer
allowed an article to be published that impugned the personal honor and challenged the fitness to be a Member of
Parliament of Charles Morgan. It is stated in the case that the two were rivals, thus it can be said that Mr. Fitzpatrick
did such action to shine a negative light on Charles Morgan in effort to get his place. However the criticism which
were mentioned in the article where not expressed in the process of parliament, it was only mentioned.
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Base on the website article www.justice.govt.nz/publications/global-publications/r/regulatory-impact-statementparliamentary-privilege-bill/immunities, it asserts that the development of new technologies affecting the broadcast
and reporting of parliamentary proceedings raises issues about the application of parliamentary privilege to these
technologies.
Parliamentary privilege applies to parliamentary proceedings in order to protect those proceedings themselves, so
that members may engage in free and fearless debate on issues of public concern. Such debate can take place
irrespective of whether or not it is broadcast. However, broadcasting and reporting on parliamentary proceedings
ensure the Houses proceedings are accessible, so people can form their own views, participate in legislative
processes, and hold Parliament to account. It is not clear when absolute or qualified privilege applies to reports of
proceedings that may be the subject of civil or criminal proceedings other than defamation proceeding.
The usage of technology in showcasing parliamentary proceeding is now a wide spread practise thought the
Caribbean. Based on the website article www.portal.unesco.org in Jamaica, citizens get live coverage of big setpiece occasions on both TV stations on the island: the budget debate, speeches by the Prime Minister and Leader of
the Opposition, the Finance Minister and the Opposition Finance Spokesman. CVM TV says its live coverage may
total 25 hours in a year. There is minimum commentary. The presenter, whether on screen or voiceover, performs an
opening and a closing." Otherwise CVM TV has a Parliamentary reporter who provides inserts for its newscasts at
least twice a week - perhaps ten minutes per week in airtime. This reporter has to observe rules on dress code when
in the House. "Jackets must be worn. No cellular phones are allowed Television Jamaica shows live any event it
deems of great importance to the country or of significant interest to viewers. The broadcasting of parliamentary
proceeding however, has both its advantages and disadvantages. Based on the website article www.jis.gov.jm, it is a
good idea to broadcast parliamentary proceedings. One of the advantages of doing so is that it would give the public
information about issue of public concern. Broadcasting parliamentary proceedings will keep members of the public
in the know. It would give insight to the public on how the government is spending the countrys money thus the
publication of the budget debate. The second advantages is that; threw the publication of parliamentary proceedings
the government can give the public an idea on how decision for the betterment for the country are made. However
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the main disadvantage is that the statements made in parliament which are level at members of house, among them
selfies when broadcasted, maybe seen as defamatory in the eyes of the public. Such behavior is not accepted as it sets
a bad example to citizens who are watching.
Based on the website article www.webcache.googleusercontent.com the UNESCO gives insight on how the media
should board caste parliamentary proceedings in common law jurisdictions. While they welcome greater public
access to their work, the great majority of Parliaments in the Commonwealth are very conscious of their dignity and
keen to uphold it. To this end they have established a series of rules to control the way the broadcasters operate.
These do not vary much between the various countries. Under rules drawn up by a House of Commons Select
Committee on Televising the House of Commons in the UK, for example, filming is in the chamber is very strictly
controlled; there are rules on how the cameras can operate and rules on the use of film footage of Parliamentary
proceedings. In the UK Parliament, and even in the House of Commons chamber: the director should seek, in
collaboration with the Supervisor of Broadcasting, to give a balanced, fair and accurate account of proceedings, with
the aim of informing viewers about the work of the house in carrying out this task, the director should have regard to
the dignity of the House and to its function as a working body rather than as a place of entertainment. Coverage
should give an unvarnished account of the proceedings of the House, free of subjective commentary and editing
techniques designed to produce entertainment rather than information.

Thus the cameras focus on the speaker, cut-away reaction shots are not permitted, except of those named in the
debate. You cannot see things which you would be able to notice if you were sitting in the public gallery - for
example human interest items like the black Labrador guide dog which accompanies Britain's blind Home Secretary
everywhere and sits at his feet in the Chamber. The cameras cannot show MPs yawning or dozing, unless they
happen to be in the frame behind the MP who is speaking or sitting next door. This happened in the early months of
2003 when the cameras, which were focusing on the Prime Minister, showed a senior colleague who had just
returned from high level meetings in the United States, clearly jet lagged and trying, without much success, to stay
awake throughout. The rules require that the cameras must not show disorderly scenes and focus on the Speaker
instead. There have been an incident which involves an MP in Parliament in Ottawa grabbed the mace as a protest at
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tactics used to kill a bill he was sponsoring, shouting Canada isn't a democracy. Neither Australians nor Canadians
saw the offending behavior on TV. A senior Canadian Parliamentary journalist explained why: It was not because
we were not allowed to show the incident. We can show any footage provided to us by House of Commons
Broadcasting. House of Commons Broadcasting, however, does not show these kinds of incidents. Their instructions
are to broadcast individual Members only when they have been recognized by the Speaker of the House or as a group
when they are voting. At other times, the camera is aimed at the Speaker's chair. While this may afford a variety of
shot lengths, the shot is always of the Speaker even if he/she is not speaking or ruling from the chair. But the
episode was picked up on microphones near the protesting MP and broadcast on radio.

Discussion of findings
Based on the findings in the research, defamation is said to be defined as statements leveled at a person either written
or spoked that can affects a persons image. It also says that the defamed statement must be communicated to a third
party and the person who is defamed should show the effects the defamed statement has on him/her. In the case of
parliament proceedings, members are protected by the defense absolute privilege; when granted they are now able to
speak freely and express themselves without them being charge for defamation. However section 3 of the defamation
act of Jamaica and Guyana states that words in radio and television broadcasted are to be treated as being in

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permanent form that is, as libel. Therefore whatever is being said in parliament is being communicated to a third
party, and this is a key factor for a person to be liable for defamation. Development of new technologies affecting
the broadcasting and reporting of parliamentary proceedings raises issues about the application of parliamentary
privilege to these technologies. The researcher has discovered that they are rules however which govern how media
personals should board cast proceedings and record personals in course of parliamentary proceedings. Persons who
are recording the proceedings should be under strict supervision on what they record and how they use these records.
In the process of parliamentary proceedings the camera is to be focused on the speaker and the speaker alone. All
other actions done by surround members of the house should not be recorded or broad casted. Coverage should give
an unvarnished account of the proceedings of the house, free of subjective commentary and editing techniques
designed to produced entertainment rather than information. Cutaways and reaction shot are not permitted except of
those named in the debate. Cameras cannot show MPs yawning or dozing unless they happen to be in the frame
behind the MP who is speaking or sitting next door. However this is in efforts not to provide entertainment for the
public but rather something business like and serious in nature. However say for instance that the speaker in the
process of conducting his speech is aggravated by a comment made by the opposition, and in response to that
comment the speaker says something extremely offensive which degrades the reputation of the member who
commented on what was said by the speaker, should the speaker then be covered by absolute privilege? Of course
this would be broadcasted to the public and the public would get an idea of the animalistic behavior of politicians.
The researcher has discovered that in the course of a debate speakers are able to speak freely without the punishment
of defamation no matter how offensive the comments are, but is this morally right? This however does not set a good
example to the general public. Question two in the interview ask the respondent should the parliamentary
proceedings be broadcast to the public. Give reasons for your answer. The respondent stated that she support the
idea of parliamentary proceedings being broadcast live. She goes on to say that it gives the viewing public a feel of
what is going on without been there. Citizens can then evaluate individuals and conclude whether our politicians are
generally sincere. The evaluation of this response therefore has the researcher thinking and states that the people of
the public would then often times be exposed to the rude behavior of the politicians. The drama that is present in the
house is not needed and when it is then broadcasted it only make the situation worse. One most make note that
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proceedings are not for entertainment but rather to be taken seriously. The adverse use of technology in broadcasting
evolved in such a way that everything is now posted on social media. However politicians who post incriminating
comments on social media about other members of the house are liable.
In the case of the Fitzpatrick privilege case of 1955 that was previously mentioned, the criticisms were not made in
the course of parliament, as a result Mr. Morgan and company could be liable. However they were liable on the
account that they breach the code of absolute privilege. The action of publicizing such criticisms in the paper meant
that Mr. Morgan communicated such incriminating facts of Mr. Fitzpatrick to a third party. All of these variable
however are suitable enough to be charge of defamation. Mr. Fitzpatrick also can tell the effect of what Mr. Morgan
published in the newspaper on his reputation. He can also give reason to why Mr. Morgan did such an act, because
they both were rivals hence Mr. Morgan wanted to take him out of power, Mr. Morgan and company where sent to
jail for 90 days. The researcher agrees with the judgement of this case as the behavior that Mr. Morgan displayed was
unprofessional and irrelevant. Question 3 of the interview, should the law of absolute privilege be changed as it
relates to parliamentary proceedings being broadcast by the media? The respondent stated that it should remain the
same as members should be able to talk freely on matters relating to the growth of the country with would fair of
civil law suits. However the researcher thinks that it should be altered as the fact that proceeding are broadcasted is
not the problem but the conduct of the members in the house is deplorable. Therefore in this time an age where
everything is exposed to the world in real time and by easy means members should conducted themselves better as
they are not representing themselves but the nation also. In response to question 4 the respondent states that as
human being, conflict is our second nature and our politicians are not immune to it. And it is true that at times heated
arguments may occur. The researcher evaluated this response and then states that the fact that heated arguments may
occur condones the behavior of the politicians in the courses of debates. There are ways in which the debate can be
conducted in a civilized manner which would not lead to any harsh comments. The respondent was ask the question,
in light of question 4and 7 is there a contradiction if persons are put in jeopardy of being slandered while the maker
of potential defamatory statements are protected by law? Give reason for your answer. The respondent stated that it is
unfortunate for plaintiff, however absolute privilege is needed in the order for smooth running of our government.
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Just imagine if everyone who made a statement in parliament, that is capable of being defamatory, how efficient
would they be at their jobs? The researcher therefore acknowledge the importance of the absolute privilege but
however states that making harsh comments doesnt make the jobs of parliamentarian efficient, yes they should be
protected but only in the sense of constructive criticisms. This usage of harsh words is totally irrelevant and thus the
intentional use of these comments is to make other members feel small. The respondent was ask to comment on the
existence of absolute privilege in this technological age and she stated that yes it should exist because it is of
uttermost importance for the leaders to feel free to speak on matters relating to the country without feeling pressured.
It is just unfortunate that some toes get crushed in the process. The researcher states that if the politicians where to be
subjected to defamation with the harsh comments they made they would not make them in the first place. Therefore
to reduce conflict among member the members themselves should be under strict ruling as a result of this the smooth
running of parliament would be made apparent.

Recommendations
The researcher will now make the following recommendation towards this issue.
1. The government should alter the absolute privilege to the extent that the gist or harshness of the criticism of
opposing members should be restricted to certain degree.
2. Members of parliament should be sanctioned whenever the harshness of criticism is to certain degree.

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3. Delayed coverage of parliamentary proceedings must be at all times and the media should not be allowed to
publish the exact words used to critique members of the house.

Appendix
Interview paper questions and responses.
1.What is your understanding of the term absolute privilege?
RESPONSE: Base on my legal knowledge, absolute privilege is a defense against a deformation law
suit that is given to certain individuals in their professional capacity

2.Should the parliamentary proceedings be broadcast to the public? Give reasons for your answer.

RESPONSE: Yes, I support the idea of parliamentary proceedings being broadcasted live. It is a good
opportunity for the viewing public to get a feel of what is actually going on, without being there. The people
can evaluate the individual persona, and conclude whether our politicians are generally sincere or not.

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3.Should the law of absolute privilege be changed as it relates to parliamentary proceedings

being

RESPONSE: No it should remain the same as is. Ministers and opposition alike should be able to talk freely
on matters relating to the growth of our country without fair of civil law suit.

4.Based on your understanding of defamation, is there any likelihood that statements made in parliament,
which is broadcast to the public could be defamatory? Give reasons for your answer

RESPONSE: As human beings, conflict is our second nature, and our politicians are not immune to it. And it
is true that at times heated arguments ensure, however based on my legal knowledge thus far, statements
whether capable of being defamatory or not is protected by absolute privilege. Even the parliamentary
transcripts are protected.
5. Do you think the absolute privilege should exist in light of this technological age? Give reason for your
answer

RESPONSE: Yes I do. As I have said before it is of utter most importance for our leaders to feel free to speak
on matters relating to the country without feeling pressured. It is just unfortunate that some toes get crush in
the process.

6. The practice of parliamentary proceeding is more established, at the same time there is a phenomenal
increase in the use of social media. In light of this, would you agree that there is a greater like hood of people
being defamed? Give reason for your answer.

RESPONSE: Once it is done within the capacity or confinement of parliament, whether defamatory or not its
protected, however if someone want to highlight the issue on social media, then the defamed party needs to
take up his issue with that individual. And even so if the matter is of public interest even then it can be
protected.

7. In light of question 4and 7 is there a contradiction if persons are put in jeopardy of being slandered while
the maker of potential defamatory statements are protected by law? Give reason for your answer.

RESPONSE: Well it is just unfortunate for plaintiffs, however, absolute privilege is needed in order for
smooth running of our government. Just imagine if everyone who made a statement in parliament, that is
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capable of being defamatory, how efficient would they be at their jobs? Politics is a rough game and not one
for sensitive people.

Bibliography
Baily, V. (2012). Cape Law by Veronica Baily. London: AuthorHouse.
Kodilinye, G. (2000). Common Wealth Caribbean tort law. London: Cavendish Publishing.
Stein, S. (2016, January 21). Meaning of Defamation. Retrieved from Law on the web:
https://www.lawontheweb.co.uk/

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