Well, yes, I am saying you aren't good at your job...

March 3, 2010 4:24 PM

Hypothetical UK legal trivia question: if a person makes a complaint to an official Ombudsman scheme about the professional activities of a person or company, is the complaint potentially defamatory? Actionable? And is it libellous or slanderous?
posted by cromagnon to Law & Government (3 answers total)

Educated guessing here: Under the Parliamentary Commissioner Act 1967, which establishes the "general" Ombudsman scheme, complaints have to be made through an MP so would presumably be covered by the MP's privilege. Publication in a special report to Parliament by the Ombudsman (which is the Ombudsman's "nuclear option") is expressly privileged (Act, section 10(4)). The special schemes seem each to have their own particular Acts, but I would be surprised if the general position wasn't the same. If for any of them a complaint can be made otherwise than through an MP, I would bet that the relevant Act gives a complaint the benefit of at least qualified privilege for the purposes of the law of defamation (that is, not defamatory unless made maliciously etc.). Sorry about the vagueness--a more detailed answer would need a good deal of collating among UK Acts, which would be fairly time-consuming. Also, I'm a lawyer but I'm an Australian lawyer who happens to live in the UK. I'm not an expert on UK defamation law.
posted by Logophiliac at 12:38 AM on March 4, 2010

Best answer: It would be libel if it were written, slander if it were spoken, but in the UK now it's all defamation AFAIK. As to whether it would be actionable, it would help enormously if you'd say which ombudsman you're interested in. The list you pointed to includes a couple that seem to be effectively private, and I don't know whether they have statutory protection.

That being said, and bearing in mind that I Am Not A Lawyer, there are two terms you ought to know about. The first is absolute privilege. MPs have absolute privilege on matters they bring up in Parliament. They could say something outrageously and maliciously false and they would be immune from any prosecution. People sometimes call Parliament "coward's castle" because of this.

The second is qualified privilege. A person with an interest or duty in relaying some information may have qualified privilege. It's called "qualified" because this will only apply in some circumstances. It does not apply when the person relaying the information does so maliciously. You might say, well, I'm not malicious. And you probably aren't. But you can be sued by someone aggrieved by your statement, and it will be up to a court to decide if you were malicious. And if you have an ounce of sense you do not want to be sued, even if you should win.

So, the question is whether your action in passing information to the ombudsman is privileged, and whether this privilege is absolute, qualified, or somewhere in between. I suspect that it attracts qualified privilege but that in order to pierce the veil and identify you the litigant would have to sue the ombudsman, who would fight this to the highest court.
posted by Joe in Australia at 1:33 AM on March 4, 2010

Response by poster: Sorry for the delay in replying to say thanks! I should add that this was an genuinely hypothetical question caused by the recent libel reform discussions and not a "friend is thinking of" case. From your replies and other sources, it does look as the qp 'defense' is ombudsman-specific and will require going through the acts that established them.

much obliged!
posted by cromagnon at 8:17 AM on March 5, 2010