Culnane v Morris & Anor

Section 10 of the Defamation Act 1952 prevents an election candidate from obtaining a special privilege merely because defamatory material concerns an issue in the election. It does not remove the ordinary defence of qualified privilege available at common law where the usual duty-and-interest requirements are satisfied. The provision must be construed compatibly with Convention rights, including freedom of expression and fair determination of a defence. The fact of an election and the relevance of electoral issues may form part of the circumstances relied on, although they cannot alone create privilege.

The claimant, a British National Party election candidate, brought defamation proceedings concerning statements published in a Liberal Democrat election leaflet. The defendants amended their defence to plead justification, fair comment and qualified privilege. The preliminary issue was whether section 10 of the Defamation Act 1952 barred the privilege defence because the publication occurred during an election and concerned matters in issue in that election.

The court considered the earlier Court of Appeal decision in Plummer v Charman, the statutory language and Parliamentary history, and the effect of the Human Rights Act 1998 and Convention rights.

1. The preliminary issue was decided in favour of the defendants. The pleaded defence of qualified privilege was not barred by section 10 of the Defamation Act 1952.

2. The section should be construed as preventing a candidate from claiming a special privilege solely because defamatory words were published by or on behalf of a candidate and were material to an electoral issue. It does not confine candidates to justification and fair comment, or deprive them of privilege available to other citizens.

3. A candidate may establish ordinary qualified privilege where the common-law ingredients, such as a social or moral duty and a corresponding interest, are present. The defence remains defeasible on proof of malice.

4. The construction was required by section 3 of the Human Rights Act 1998. A restrictive interpretation would adversely affect freedom of political expression under Article 10 and the fair opportunity to have a properly pleaded defence determined under Article 6. The court therefore considered whether the restriction was necessary in a democratic society and proportionate to a legitimate aim.

5. Plummer v Charman contained strong statements supporting a restrictive construction, but had been decided before the Human Rights Act 1998 and before the approach to Parliamentary materials recognised in Pepper v Hart. The court adopted a Convention-compatible interpretation of the statutory wording.

6. The court did not determine whether privilege was established on the facts. The defence could be advanced at trial, and the election and the issues arising in it could be considered as background circumstances, though they were insufficient by themselves to create privilege.