Publication of regulatory decisions
===IMMUNITY FROM SUIT FOR DEFAMATION IN REGULATORY PROCEEDINGS: PUBLICATION OF DECISIONS===
The basic ingredients of a libel are satisfied when (1) A establishes (2) that B has published (3) to one or more third persons (4) words which refer to A and (5) are defamatory of A. Words are considered ‘defamatory’ if they tend to lower A in the opinion of others, or if they have or tend to have a substantial adverse effect on the attitude of other people towards the claimant. ‘Publication’ means communication to one or more people other than A. A does not need to prove malice on the part of B. In addition, B is responsible for republication of the words if republication is a foreseeable, natural and probable consequence of the initial publication. The burden of establishing a defence lies on B. This article considers defences which may be available to independent tribunals tasked with making decisions in relation to fitness to practise and to the regulators in question.
Under s.14 of the Defamation Act 1996, fair and accurate reports of court proceedings which are published contemporaneously are absolutely privileged; this privilege does not extend to the fitness to practise tribunals of regulators, who therefore have to look elsewhere for defences for publishing defamatory decisions. While justification may provide an absolute defence, a case will need to be litigated to prove justification; since litigation carries attendant risks and potentially significant costs (which, even in the event of success, may not be recouped), it is worth looking elsewhere.
Article 6 ECHR requires tribunals determining an individual’s right to practise their chosen profession to be independent. The majority of tribunals have a duty to either report their findings or give directions to the regulator. Examples include:
General Medical Council: under s.35B(4) Medical Act 1983 the GMC has a duty to publish, in such manner as it sees fit, decisions of its Fitness to Practise Panel;
Nursing and Midwifery Council: paragraph 22(9) of the Nursing and Midwifery Order 2001mandates that the NMC publish particulars of any orders and decisions made by a Practice Committee, while paragraph 29(5) of the Order mandates that the NMC’s Conduct and Competence Committee (‘CCC’) make directions to the Registrar in relation to its findings. Though the Order does not direct the CCC to give specific reasons for its decision, reasons are required in such cases by Article 6 ECHR;
Accountancy and Actuarial Discipline Board: under para 7(10) of its scheme, the Disciplinary Tribunal has a duty to make a report setting out its written decision and reasons and must send that decision to, amongst others, the Board itself. Under paragraph 7(12) of the scheme, the Board must publish the report in such manner as it sees fit.
In all cases, the decision-makers have a duty to communicate their decision to the regulator, and republication of the decision by the regulator and others is a foreseeable, natural and probable consequence of such communication.
Such tribunals will generally be able to claim common law privilege in relation to their decision. The test is that set out in Adam v Ward  A.C. 309 at p.334:
‘A privileged occasion is, in relation to qualified privilege, an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.’
In each of the examples cited above, the respective tribunals are under a legal duty to communicate to the regulator, which constitutes a person with a corresponding interest or duty to receive it. Even where there is no express statutory or contractual duty, there is significant scope to argue that the tribunal will be under a social or moral duty to report its findings. It could also be argued that the guarantee of a fair and public hearing under Article 6 ECHR requires publication of a decision, constituting a legal duty for the tribunal for the purpose of this privilege.
It is important to note that qualified privilege is vitiated by proof of malice. In Egger v Chelmsford 1 Q.B 248 a letter published by the Regulations Committee of the Kennel Club (which stated that it was unable to approve the appointment of the plaintiff to judge Alsatians at a show) was held to be defamatory. A number of members of the committee were found by the court to be actuated by malice in coming to their decision. The court held that those defendants actuated by malice did not enjoy the protection of qualified privilege, while those not actuated by malice were protected by privilege.
In relation to members of a professional body subject to disciplinary proceedings, the regulator may be able to plead that the contractual nature of the relationship between the regulator and the member is one whereby the member consents to the rules of the regulator, including publication of disciplinary findings. Some bodies (such as the FA) make this an explicit condition of their rules but the nature of a regulator’s supervisory functions means that it is arguable that such consent could be implied. Consent is an absolute defence, but will not be an answer to claims by third parties defamed by a decision, since the third party will not have given their consent to prima facie defamatory statements being made about them.
The common law privilege discussed above may be available to regulators themselves in respect of the onward publication of the findings of the tribunal; that said, care needs to be taken. While common law privilege may apply to publication of a decision to a complainant or to an employer, publication to a wider audience (such as on the regulator’s website) could be said to lack the reciprocity required for common law privilege. While it could be argued by a regulator that statute, the public interest and/or the requirements of Article 6 ECHR place it under a legal, social or moral duty to publish findings of its disciplinary decisions to the general public, this approach carries an inherent degree of risk and the point has not been tested.
Statutory reporting privilege – s.15 Defamation Act 1996
An alternative option for a regulator would be to seek to rely on the reporting privilege contained in s.15 of the Defamation Act 1996:
s.15 – Reports etc protected by qualified privilege
The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.
In defamation proceedings in respect of the publication of a report or other statement mentioned in Part II of that Schedule, there is no defence under this section if the plaintiff shows that the defendant –
was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and
refused or neglected to do so.
Schedule 1, Part II, sub-paragraph 14(b) contains the relevant provision:
A fair and accurate report of any finding or decision of [an] association... any committee or governing body of... an association formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with that trade, business, industry or profession, or the actions or conduct of those persons.
There are two potential obstacles to claiming this privilege: (1) whether a regulator can be said to ‘report’ its own conclusions; and (2) whether the decision of an independent tribunal is a decision of ‘an association... or of any committee or governing body of an association’.
Can a regulator ‘report’ its own conclusions?
Gatley on Libel and Slander (11th Edition) notes at 16.3 that the law prior to the Defamation Act 1996 confined this statutory reporting privilege to newspapers or broadcasters. Gatley goes on to state that ‘the policy of the statute would seem to be aimed at protecting the reporter and the originator cannot fairly be said to be “reporting his own words”.
In a footnote to this comment, however, Gatley mentions the unreported case of Lloyd-Allen v Adams in which it was held that the statutory privilege in question applied to a councillor in respect of a newspaper report of her speech which she had caused or authorised. Further, the notion that a regulator ‘cannot fairly be said to be “reporting his own words”’ stems from a time when tribunals were not independent from the regulator. Though the point has not yet been decided, there are good reasons to think that a court would accept that the distance between a tribunal and the regulator as a result of the requirement for independence would see the statutory reporting privilege held to encompass regulators publishing decision of their independent disciplinary tribunals. In McCartan Turkington Breen v Times Newspapers  A.C. 277 (a case regarding qualified privilege as it relates to published reports of a public press conference) Lord Bingham stated (referring to the fact that press conferences were ‘unknown’ when the operative statute in McCartan was enacted) that statutes ‘must be interpreted in a manner which gives effect to the intention of the legislature in the social and other conditions which obtain today’.
Does an independent tribunal constitute an ‘association’, ‘committee’ or ‘governing body’ of an association?
On a strict interpretation of the statute, an independent tribunal may not be considered to be an association, or a committee, or the governing body of an association in that its very independence distances itself from the association in question. Notwithstanding this, there are good reasons to suggest that a court would take a purposive approach to the construction of the statute. Moreover, in McCartan Lord Bingham emphasised that:
‘"Public", a familiar term, must be given its ordinary meaning. A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. Press representatives may be regarded either as members of the public (as made clear by the language of paragraph 10 of the Schedule) or as the eyes and ears of the public to whom they report.’
It would be a perverse distinction to deny a regulator the protection of the statutory reporting privilege but to afford the same privilege to the press, especially considering the fact that, as cited above in relation to the GMC and the NMC, a number of regulators have a statutory duty to publish the findings of disciplinary committees. In addition, one must consider the attendant public interest in relation to the work of such bodies.
The right of reply
s.15(2) gives a claimant the right to request publication of a reasonable letter or statement by way of explanation or contradiction. Though the onus is on a claimant to make the request, there will be circumstances in which it will be prudent for a regulator to give notification of publication. ‘Reasonable’ is unsatisfactorily opaque and may have attendant complications of its own.
Associate at Field Fisher Waterhouse
With thanks to Mark Warby QC for providing advice and clarifications