Does parliamentary privilege have unintended consequences for journalism? If statements made under parliamentary privilege seem to constitute evidence of impropriety, can journalists report on this without risking defamation penalties? Hypothetically, if a politician &quot;appeared&quot; to perjure themselves (e.g. by giving inconsistent statements to various public committee hearings) or alternatively made a speech that &quot;appeared&quot; to implicate someone in a crime (which that person had not already been accused of elsewhere), then would journalists be free to report on this? Or would those journalists be exposing themselves to claims of defamation, since they would inherently be imputing someone's character on the basis of no evidence that could be presented in court (even though their source material does exist on the public record)? For context, I'm trying to understand whether the recent cases against YouTube &amp; FriendlyJordies have any consequences more broadly for investigative journalism on the topic of potential political corruption (although related legislation seems to let the government imprison their critics even without involving the courts).
Consequence? Yes. Unintended? Not so much. Source Sources of Parliamentary Privilege In new-south-wales, Parliamentary Privilege derives from Article 9 of the Bill of Rights 1688 (no, 1688 is not a mistake) which provides: ... 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. What are &quot;proceedings in Parliament&quot;? &quot;[P]roceedings in Parliament&quot; is defined by case law. In Canadian and English jurisprudence, the definition includes things done outside Parliament in the furtherance of Parliamentary business such as correspondence, and press releases. The leading cases are Roman Corp Ltd v Hudson's Bay Oil and Gas Co Ltd and Re Clark and Attorney-General of Canada for Canada, and Rost v Edwards for England and Wales. Australian case law is split. The leading case is Australian Broadcasting Corporation v Chatterton in the Full Court of the South Australian Supreme Court where Zelling AJC held that privilege applies to restatements by an MP outside Parliament of things said inside, possibly including answering questions about those things in an interview. Prior J rejected this and Jacob J didn't address it. That's one win, one loss and one DNF for those keeping score. For the Federal Parliament, the Parliamentary Privileges Act 1987 defines &quot;proceedings in Parliament&quot; as: ... all words and spoken acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published The northern-territory has similar legislation. In Laurance v Katter, there was a judicial split in the Court of Appeal in the Queensland Supreme Court about whether this definition was unconstitutional. Pincus JA held that s 16(3) was incompatible with the implied freedom of political communication. Following the High Court's decision in R v Richards; Ex part Fitzpatrick and Browne, Fitzpatrick P held that s 16 could not be invalidated or read down to accommodate the implied freedom of political communication. Davies JA read down s 16(3); in his view, the section was enacted merely to make it clear that parliamentary privilege applies not only where a member or witness is sued but also where evidence is sought to be tendered; in both cases, the privilege applies only where the parliamentary proceedings would be impeached or questioned. Davies JA then held that this was not the case in these proceedings. The High Court gave special leave to appeal this decision but the matter was settled before the appeal was heard. So, the exact boundaries of Parliamentary privilege in Australia remain uncertain. However, a prudent journalist should assume that it extends not just to statements made in the House or before a Committee but to statements about those statements made outside by the MP or their staff. Who has the privilege? The privilege belongs to Parliament, not any individual MP, and can only be waived by Parliament. It cannot be invalidated by the courts due to the doctrine of separation of powers. Australian parliaments take the attitude that the waiver of privilege is a procedural matter about their own internal workings and does not require legislation. In England and Wales, legislation has been passed that allows an MP to waive privilege over their (and only their) statements but no such law exists in Australia. Effect of Parliamentary Privilege There are two limbs to Parliamentary Privilege: It provides absolute immunity to the MP (and possibly their staff) for statements made under privilege. That is, following Barilaro v Shanks-Markovina (No 2) [2021] FCA 950, anything and everything that is under privilege is completely inadmissible in court. By legislation in each Australian jurisdiction, qualified immunity is provided for the &quot;fair and accurate reports of parliamentary proceedings. Thus, a media organization is protected from liability for defamation in respect of the publication of a fair and accurate report of parliamentary proceedings unless the plaintiff can establish that, in publishing the report, the media organization was actuated by malice.&quot; The Federal and Northern Territory legislation appears to go further and may provide absolute immunity but that has not been tested. Actuated by malice Malice in law does not mean what it means in everyday English. It means, with respect to defamation, that a statement was made either knowing that it was untrue or with reckless disregard for its truthfulness. In other words, you were deliberately lying, or you made no effort to find out if you were lying. Within the context of Parliamentary Privilege, you cannot rely on the truthfulness of statements made in Parliament to establish that what you reported was the truth. The existence of the statements might be admissible, for example, to establish if privilege attaches to them but the content of the statements themselves has no probative value. In some ways, this is like a hearsay statement: you can testify that the statement was made (if that's relevant) but you cannot testify that there is any truth-value to what was said. Therefore, if you make a nasty remark (that goes beyond &quot;fair and accurate reports&quot;) and your only reliance on the truthfulness of your statement comes from things under Parliamentary Privilege then you have no defence to a defamation claim. So, accusing someone of perjury for what they said to a parliamentary committee rather than just reporting what they said is clearly actuated by malice: it may be true but you know that you can't prove it's true - that amounts to reckless disregard for the truth. Consequences The purpose of Parliamentary Privilege is to allow MPs to vigorously advance the interests of their constituencies (i.e. us) without the fear that they will be called to account for what they say in either a civil or criminal court. It has been argued that some uses of Parliamentary Privilege are an abuse, particularly where they subvert the operations of the judiciary or law enforcement such as by naming suspects, defendants, and witnesses or where the statements would be defamation but for the privilege. However, if they are, it is for the Parliament to discipline the MP by sanction or expulsion, or for the electorate to do so through the ballot box. Such discipline is rare, partly because no one wants to unleash a weapon that could be turned upon themselves but mostly, because Parliament is loath to interfere in the electorate's right to choose their own representatives even if they are wankers. This privilege is clearly at odds with the principle of free speech and inhibits the ability of media outlets to editorialise on matters covered by privilege. This consequence is not unintended, rather it is a deliberate trade-off of one pillar of democratic life against another.
No. In the United States, lying is not a crime. Unless it is done: under oath (in which case it's called perjury) or to a law enforcement agent conducting an investigation (in which case it's called obstruction). There are also the civil torts of slander (oral) and libel (written) if someone lies and damages the reputation or business interests of a person or company. Collectively, and without distinction, these are called defamation. Lying also has a close cousin &mdash; the civil tort of fraud &mdash; which usually applies to inducement into a transaction or a contract. There are also consumer protection statutes (federal and state) that deal with truth in advertising, truth in lending, lemon laws, etc. But those are primarily civil statutes and the last two are pretty far afield from your question. But none of that applies to the Facebook case you described. So, no.
canada Damages for libel have been awarded based on publication to a single individual. The elements of defamation are (Grant v. Torstar Corp., 2009 SCC 61, para. 28): (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. For an example, see Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A). A letter &quot;imputing unchastity&quot; of a housekeeper was sent to a single individual.
Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare
does a reference for a candidate employee have liability for what they say about the candidate? To my understanding lying isn't illegal. Lying is unlawful to the extent that the liar's deliberate intent to mislead other(s) causes or is likely to cause unwarranted harm. This is regardless of whether &quot;the person acting as a reference isn't under obligation not to be a reference&quot;. Lies can directly harm the candidate and/or the company, and others indirectly. The harm to the candidate is known as, or comes in the form of, defamation. Depending on the jurisdiction, an intent to mislead might not even be a prerrequisite for liability. For instance, Michigan statute MCL 600.2911(7) allows suits for libel or slander if &quot;the defamatory falsehood concerns the private individual and was published negligently&quot; (emphasis added). The liar's intent to mislead and his knowledge of the falsehood of his statements can only worsen the harm inflicted and his liability therefor. Likewise, the liar can be liable to the company for inducing it to hire a candidate the company would not have hired had it known the truth. Liability ensues when the hired candidate makes the company incur losses which would be prevented by relying on a truthful reference. If the reference is truthful, the chances for liability are significantly narrower. These scenarios typically involve matters of privacy or disclosures that are protected/sanctioned by law.
“Serious harm” is a requirement in the Defamation Act 2013 The Supreme Court interpreted it in Lachaux v Independent Print Ltd &amp; Anor [2019] UKSC 27 (12 June 2019) at [10-20]: ... it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words. You, as the plaintiff must prove on the balance of probabilities that you have or are likely to suffer serious harm. That is harm that is greater than the previous common law threshold of substantial. In this case, the court agreed that serious harm had been done so it’s useful to consider what Lord Sumption said about the evidence that had (correctly) convinced the trial judge at [21] (my emphasis): On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome. So, you must prove that it is likely that prospective employers/schools will see the defamatory statements and that they are so grave that it is likely that you would be refused a position because of them.
Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.).
If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations.