Defence of Qualified Privilege in Defamation

Statutory Defence of Qualified Privilege in Defamation

This section in the Defamation Act 2005 (Qld) (“the Defamation Act”) in relation to qualified privilege is quite long, so we can break it up as follows:

Section 30(1) of the Defamation Act states:

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a)the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

This defence is valid if the defendant can prove the following three conditions:

1. The recipient has an interest or apparent interest in receiving information on a particular subject.
2. The defamatory matter is published to the recipient as part of providing information on that subject.
3. The defendant’s conduct in publishing the material is reasonable under the circumstances.

Essentially, subject to the balance of the section, if these conditions are met, the defendant may be protected from liability for defamation.

Section 30(2) of the Defamation Act states:

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

For the court to find that the conduct was reasonable, several aspects are considered:

1. The relationship between the publisher and the publishee, including social or moral rights or duties.
2. The context of the publication, such as who published it, to whom, when, why, and in what circumstances.
3. Whether the publication was made for reward (not defeating the defence) or was actuated by malice (which does defeat the defence).
4. The language used and whether it was excessive, as disproportionate language may indicate malice.
5. The conduct of the defendant before and after the publication.

The reasonableness of a publication in a widely circulated medium, like a newspaper, requires justification, especially if the subject is of limited public interest.

Case Summary – In Grattan v Porter [2016] QDC 202, Robertson DCJ said:

The … defence of qualified privilege … is attracted when the recipients have an interest or an apparent interest in having information on a particular subject; when the offending publication is made in the course of giving relevant information to the recipients; and most importantly when the conduct of the defendant in publishing the matter is reasonable in the circumstances.

In summary, this section outlines that reasonable grounds are assessed based on a comprehensive list of factors (below) and the overall context and conduct of the defendant, with the court having broad discretion to consider all relevant circumstances, that a defamation lawyer has to understand.

Section 30(3) of the Defamation Act states:

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account the following factors to the extent the court considers them applicable in the circumstances—

(a) the seriousness of any defamatory imputation carried by the matter published;

(b) the extent to which the matter published distinguishes between suspicions, allegations, and proven facts;

(c) the nature of the business environment in which the defendant operates;

(d) whether it was appropriate in the circumstances for the matter to be published expeditiously;

(e) any other steps taken to verify the information in the matter published.

 

(3A) Subsection (3) does not—

(a) require each factor referred to in the subsection to be taken into account; or

(b) limit the matters that the court may take into account.

 

(3B) It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1).

The court in defamation action must determine if the occasion is privileged, considering various factors like who published the material, to whom, when, why, and in what circumstances. There is no need for a social or moral duty to underpin the publication under the statutory defence.

This section explains that in determining whether the conduct of the defendant in publishing defamatory matter is reasonable under the circumstances, the court takes into account an extensive list of factors, specified from (a) to (e). Factor (e) is particularly notable for its discretionary nature, allowing the court to consider any other circumstances it deems relevant.

Case Summary – In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 McHugh J said:

In determining the question of privilege, the Court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient. It does not ask whether the communication is for the common convenience and welfare of society. It does not, for example, ask whether it is for the common convenience and welfare of society to report that an employee has a criminal conviction. Instead, it asks whether this publisher had a duty to inform this recipient that the latter’s employee had been convicted of a particular offence and whether this recipient had an interest in receiving this information. That will depend on all the circumstances of the case. Depending on those circumstances, for example, there may be no corresponding duty and interest where the conviction occurred many years ago or where it could not possibly affect the employment.

There must be a corresponding duty to both give the information that is from someone with a legal, moral, or social duty to send it, and a person who should receive it.

The list of factors should be approached flexibly, as it is neither exhaustive nor mandatory. The Court may also consider the subjective intention or state of mind of the defendant.

Section 30(4) to (6) of the Defamation Act then goes on to say:

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

(6) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by the jury is to determine whether a defence under this section is established.

The History of the Defence of Qualified Privilege

The defence of qualified privilege in defamation law serves to balance the right to reputation against the right to freedom of speech. It allows publishers to escape liability for defamatory statements made for the “common convenience and welfare of society” provided the publication is not actuated by malice and is made on a privileged occasion.

Qualified privilege emerged in English common law to protect publications necessary for societal welfare, even if defamatory and untrue. The first signs appeared in Edmondson v Stephenson (1766) Bull. N.P. 8. concerning character references where Lord Mansfield reaffirmed that a “former master” (employer) could only be held liable for providing a negative character reference under “extraordinary circumstances of express malice“.

The defence of qualified privilege was originally limited to private statements (as above), but Toogood v Spyring [1834] EngR 363 laid down the general principle that statements made in the discharge of a public or private duty are protected if made without malice. In this case, a tenant (farmer) complained to the landlord that the worker sent to conduct repairs had become drunk and broken into his cellar. The workman subsequently sued for the tenant’s defamatory statement made to the landlord.

The court held that the tenant could rely on qualified privilege. This was because the information was clearly important to convey, and the tenant made the statement believing it to be true.  Parke B finding:

If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

Over time, the defence of qualified privilege has evolved, requiring a privileged occasion based on a reciprocity of duty or interest between the publisher and the recipient. This includes private communications and responses to attacks. The High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 extended the common law defence to cover political communications, emphasising the importance of freedom of political speech in a democracy.

In Lange v ABC, the defence of qualified privilege was extended to cover publications made in the course of discussing government and political matters, provided the publication was reasonable in the circumstances. The defendant must prove they were unaware of the falsity of the material, did not publish it recklessly, and that the publication was reasonable.

Common Law Defence of Qualified Privilege in Defamation

The common law defence of qualified privilege operates independently of the statutory defence under the Defamation Acts, maintaining its own unique criteria and applications. Unlike the statutory defence, the common law defence mandates the following requirements:

1. Reciprocity of Duty or Interest
2. Occasion of Privilege
3. Promotion of Societal Welfare
4. Reasonableness of Conduct
5. Absence of Malice
6. Knowledge of Falsity
7. Proportionality in Response to Attack

These elements collectively define the boundaries within which the common law defence of qualified privilege operates. They ensure that the defence is applied in situations where there is a legitimate need for free communication, provided the communication is made responsibly and without improper motives.

Reciprocity of Duty or Interest

For the defence to apply, both the publisher and the recipient of the defamatory communication must have a corresponding duty or interest in the information being communicated. This reciprocity is fundamental to the defence, ensuring that the communication serves a legitimate purpose for both parties.

Occasion of Privilege

The occasion on which the communication is made must be one that the law recognises as privileged. This typically includes situations where there is a legal, social, or moral duty to make the communication, and the recipient has a corresponding interest in receiving it.

Promotion of Societal Welfare

The communication should be made in a context that promotes societal welfare. This element ensures that the communication serves a broader public interest, justifying the protection provided by the defence.

Reasonableness of Conduct

The conduct of the publisher in making the communication must be reasonable under the circumstances. This includes the manner of publication and the scope of the audience reached. Excessive publication or making the communication available to a broader audience than necessary, can defeat the defence.

Absence of Malice

The defence is defeated if the plaintiff can prove that the publication was actuated by malice. Malice, in this context, refers to an improper motive or purpose that induced the defendant to use the occasion of qualified privilege to defame the plaintiff. The defence requires the publication to be made in good faith without an intention to cause harm.

Knowledge of Falsity

While the defence can apply even if the defamatory statement is false, it is crucial that the publisher did not know the statement was false at the time of publication. If the defendant knew the statement was false or acted recklessly regarding its truth, the defence is invalidated.

Proportionality in Response to Attack

In cases where the defence is used to reply to an attack on one’s character or conduct, the response must be proportionate to the attack. The defence will only protect responses that are relevant and proportional to the initial defamatory statements.

In summary, the common law defence of qualified privilege is a robust yet complex legal doctrine that operates alongside statutory defence, requiring careful consideration of reciprocity, intent, and proportionality. Its evolution, particularly through the Lange defence, reflects the dynamic interplay between legal principles and the practical realities of communication in a democratic society.

Malice Defeats Qualified Privilege

Qualified privilege is defeated if the plaintiff proves that the publication was motivated by malice. The term “malice” is not defined in the Act. It refers to an improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.

Case Summary – In Roberts v Bass (2002) 212 CLR 1, Gaudron, McHugh and Gummow JJ stated at [73]:

Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice…

Excessive Publication Defeats Defamation

Excessive publication occurs when a statement is made available to a wider audience than necessary to fulfill the interest or duty.  Even when there is a reciprocity of duty and interest, excessive publication can still defeat the defence of qualified privilege.

Case Summary – In Cripps v Vakras [2014] VSC 279, the Victorian Court of Appeal ruled that publishing to the world at large on general websites could be considered excessive publication, and therefore, not protected by qualified privilege.

The Court found that the defendants, Demetrios Vakras and Lee-Anne Raymond, had published defamatory statements about Cripps on their personal websites. The content was described as being highly critical, using terms like “toxic,” “racist,” and “bully.” The Court determined that the publication was excessive and lacked justification, leading to a significant impact on Cripps’ reputation. The defendants’ failure to remove the defamatory material from the internet and their conduct during the proceedings contributed to the Court’s finding of aggravated damages.

Case Summary – In the case of Bolton v Stoltenberg [2018] NSWSC 1518, the Supreme Court of New South Wales addressed several key issues regarding the publication of defamatory content on Facebook. The Court rejected the defence that the Facebook page had a limited audience with a special interest, arguing that the posts were aimed at a wide audience.

The Court found that the language and conduct in the publication lacked reasonableness and that the excessive nature of the posts diminished the credibility of the defendants’ claims. Furthermore, the Court did not accept the statutory qualified privilege defence, ruling that the defendants’ conduct in publishing the posts was not reasonable under the circumstances.

Case Summary – However, in contract to the above, when discussing qualified privilege in the context of online reviews (world at large), in DG Certifiers Pty Ltd v Hawksworth [2018] QDC 88, Rosengren DCJ discussed whether the reciprocity existed if published to the world at large.  The Court said:

Unlike a talk back radio broadcast, newspaper article, or an online restaurant review to the public at large, the defendant chose the recipients of his reviews. They were directed and intended at persons who may be interested in engaging the building certification services of the plaintiffs. They were on websites where the plaintiffs allowed and in fact invited clients to write reviews of their experiences with the plaintiffs for this intended purpose.

The Court found that when defending a defamation claim, the defamatory imputations were able to qualify for the defence of qualified privilege at common law and statute.

Application of Qualified Privilege

The common law defence of qualified privilege serves as a crucial safeguard in defamation cases, allowing for the protection of certain defamatory statements made under specific conditions.

This defence hinges on the principle that some communications, even if defamatory, should be protected if made in good faith and in circumstances where both the publisher and the recipient have a legitimate interest in the information.

There are a number of ways that defamation can arise, and a number of ways that the defence of qualified privilege can apply.  This includes (inter alia):

1. Publication in the newspapers.
2. Publication on Social media, Google reviews, and websites.
3. In circulars and closed groups (body corporate lot owners, for example).
4. Previous employers / employees.
5. Publication to the police.

The application of this defence varies significantly depending on the context and details of each case. Below is a summary of several notable cases that illustrate the circumstances under which the defence of qualified privilege was considered and either upheld or rejected by the courts.

Publication in the Newspapers

Historically, newspapers have been the subject of most defamation proceedings due to their influential role in disseminating information to the public. As primary sources of news and opinion, newspapers hold significant power in shaping public perception.

This broad reach and impact make them particularly vulnerable to defamation claims, as any inaccuracies or unsubstantiated statements can potentially harm an individual’s reputation on a large scale.

The responsibility to balance freedom of expression with ethical journalism standards often puts newspapers at the centre of legal disputes over defamatory content. Their prominence in public discourse and the high stakes involved in maintaining credibility and trust further contribute to their frequent involvement in defamation cases.

Case Summary – Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

In the original case, Ms Mundine, the plaintiff, sued both Avery Brown and the Daily Examiner, the defendants, for defamation that occurred on a front page article published in the Daily Examiner newspaper, of which Mr Brown was the author.

The defendants attempted to plead the defence of qualified privilege, but the judge found the defendants could not establish this defence. The court of the initial case found the defendants guilty of defamation, stating the article had defamed Ms Mundine, due to the imputations that she was incompetent in her occupation.

The defendants sought to appeal this decision, applying for an extension of time on their appeals, as both defendants filed them out of the appropriate period. The defendants believed the initial court was wrong in deciding they did not fulfil the defence of qualified privilege. However, the court decided to reject the defendant’s applications for an extension of time, as they found it would disadvantage the defendant if it was granted.

• The initial court found the defendants guilty of defamation and rejected their defence of qualified privilege.
• The court determined that the defendants could not establish that the publication was made on an occasion of qualified privilege.
• The judge held that the article’s wide dissemination and its content did not meet the criteria for qualified privilege.

Case Summary – Gallagher -v- Destiny Publications Pty Ltd [No 2] [2015] WASC 475

In this case, the plaintiff, Mr Gallagher, sued the defendant, Destiny Publications Pty Ltd, for defamation over an article published in the National Indigenous Times Newspaper. The defendant pleaded the defence of qualified privilege, arguing that the article was published on an occasion of qualified privilege as it was of public interest and the defendant had a duty to publish it.

The court found that the defence of qualified privilege was not applicable. The court held that the defendants did not establish that the publication was protected by qualified privilege. The defence was unsuccessful, and the court ruled against the defendants. The Court held:

Bearing in mind the unsatisfactory prior history of the defendants’ pleadings, there will be no further leave to amend to raise pleas of qualified privilege, or s 30 statutory qualified privilege, in respect of that email.

Case Summary – Jensen -v- Nationwide News Pty Ltd & Anor [No 13] [2019] WASC 451

In this case, the plaintiff, Mr Jensen, sued the defendants, Nationwide News Pty Ltd and another, for defamation arising from an article published in The Australian newspaper. The allegedly defamatory imputations included that Mr Jensen is a ‘hypocritical purveyor of smut’ and exploited his parliamentary role to obtain physical wealth.

Nationwide News Pty Ltd invoked the defence of qualified privilege, arguing that the publications were made in a context where there was a public interest in the information.

• Court’s Decision: The Supreme Court of Western Australia held that the defence of qualified privilege was not applicable. The court concluded that the nature of the publications did not meet the criteria for qualified privilege as defined by common law, especially considering the broad reach and the content of the articles.
• Outcome: The court ruled in favour of Dr. Jensen, awarding him $325,000 in compensatory and aggravated damages, with interest. The judgment emphasised the serious nature of the defamatory imputations and their impact on Dr. Jensen’s reputation.

The court found that the defendants had a duty to report on matters of public interest, and the public had a corresponding interest in receiving that information, upholding the defence of qualified privilege.

Publication on Social media, Google reviews, and Websites

In the digital age, the internet has become an integral part of daily life, providing a platform for communication, information sharing, and social interaction. However, the ease of disseminating information online has also led to a significant rise in defamation cases.

Online defamation occurs when false statements are made about an individual or organisation, causing harm to their reputation. The anonymity and wide reach of the internet amplify the impact of defamatory content, making it a pressing issue in today’s interconnected world.

The prevalence of online defamation is reflected in the increasing number of legal cases brought before the courts. Social media platforms, search engines, and review sites are common venues where defamatory statements are published.

The challenge lies in balancing the protection of individuals’ reputations with the principles of free speech, highlighting the need for clear legal frameworks and responsible online conduct.

Case Summary – Kelly v Davis & Anor [2022] NSWDC 352

In this case, the plaintiff, Mr Kelly, sued the defendants, Ms Davis and her employer, for defamation over two publications made on Facebook. The imputations included claims that the plaintiff attended campus for illegitimate purposes and was there to sexually proposition first-year students. The defendants claimed the defence of qualified privilege.

The court ruled in favour of the defendants against the plaintiff, stating the ‘defence of qualified privilege failed, but her common law defence of qualified privilege would have succeeded’.  Abadee DCJ said at [254(c)]:

I would have found that Ms Chan’s statutory defence of qualified privilege failed, but her common law defence of qualified privilege would have succeeded.

Case Summary – Srecko and David Lorbek v Peter King [2022] VSC 218

In this case, Srecko and David Lorbek, the plaintiffs, sued Peter King, the defendant, for the publication of Google reviews that were allegedly defamatory. The imputations made included that each of the plaintiffs were untrustworthy/dishonest car dealers and had lied to the plaintiff.

The court upheld the statutory qualified privilege defence concerning the series of Google reviews published by the plaintiff. The Court found that the recipients of the reviews, including the LLC employee responsible for responding to negative reviews, had an interest in receiving the information, and that King’s conduct in publishing the reviews was reasonable, as his predominant purpose was to share his adverse customer experience rather than to damage the Lorbeks’ reputations.

The court determined that King’s conduct in publishing the reviews was reasonable. This conclusion was supported by King’s extensive efforts to verify the roadworthiness of the vehicle and the genuine belief that the Lorbeks knowingly sold him a non-roadworthy car. Additionally, the court found no evidence that King’s primary purpose was to harm the Lorbeks’ reputation, but rather to share his adverse customer experience.  McDonald J ultimately finding:

PK has a defence of statutory qualified privilege for the publication of the impugned publications. As a result, the plaintiffs’ claim for damages and permanent injunctions is dismissed. I will provide the parties with an opportunity to make submissions on the costs of the proceeding.

This decision marks a significant moment in Australian defamation law, particularly concerning the application of qualified privilege to online reviews. It demonstrates that, provided the reviewer acts reasonably and without malice, they may be protected under statutory qualified privilege when publishing critical reviews online.

Case Summary – Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535

In this case, the four plaintiffs sued the defendant, Lower Murray Urban and Rural Water Corporation, for defamation that arose from the publication of a letter on the defendant’s website. The allegedly defamatory imputations included that the plaintiffs broke the law and acted irresponsible. The defendant relied on 3 defences, one of which was the defence of qualified privilege, stating that the recipients had an interest in obtaining the information in question.

The court found that the plaintiff had failed to establish a defence of qualified privilege, as well as the several other defences pleaded, and awarded each of the plaintiff’s damages, including aggravated damages.

The court found that the publication did not meet the criteria for qualified privilege because the communication was not made on an occasion of privilege, and the recipients did not have a sufficient interest in receiving the defamatory information.  Kaye J finding:

The defendant did not, in its defence of the proceedings at trial, plead that the allegations, so published by it about the plaintiffs, were true. Accordingly, each of those allegations are presumed to be untrue. The defendant has failed to establish a defence under s 28 of the Defamation Act, of publication of a public document, a defence of qualified privilege at common law, or a defence of qualified privilege under s 30 of the Defamation Act. Accordingly, the plaintiffs are each entitled to an award of damages, including aggravated damages. Mr Belbin, Mr Di Masi and Mr Marciano are each entitled to an award of $70,000 damages against the defendant. Mrs Prevedello is entitled to an award of $85,000 damages against the defendant.

The judgment highlights the stringent requirements for the defence of qualified privilege in defamation cases. To succeed, the defendant must prove that the publication was made on an occasion of privilege and that the recipients had a legitimate interest in the information.

In Circulars and Closed Groups

Defamation within the context of circulars and closed groups, such as body corporates or club email lists, presents unique challenges and considerations. Unlike public platforms where defamatory statements can reach a wide audience, circulars and closed groups have a more confined yet potentially impactful sphere of influence.

In these settings, the tight-knit nature of the audience means that defamatory remarks can have significant repercussions on an individual’s reputation within a specific community. The perceived intimacy and trust within these groups can exacerbate the harm caused by defamatory statements, making it crucial to understand the legal implications and responsibilities of communication in such environments.

The dynamics of defamation in closed groups also raise important questions about the balance between freedom of expression and the protection of individual reputations. In body corporates or club email lists, where members often share sensitive or personal information, the potential for defamation is heightened.

The law must navigate the delicate interplay between allowing free speech and preventing harm through false or malicious statements. As these groups operate within a defined and often legally recognised structure, the repercussions of defamation can include not only personal distress but also legal and financial consequences for the organisation itself. Therefore, understanding the nuances of defamation in these contexts is essential for both individuals and the governing bodies of such groups.

Case Summary – O’Hara v. Sims [2008] QSC 301

In this case, the plaintiff, Brian O’Hara, sued the defendant, Cliff Sims, for defamatory statements made in a letter circulated to club members alleging that the appellant had acted improperly concerning a club election. The defendant successfully argued the defence of qualified privilege.

• The plaintiff, Mr. O’Hara, argued that the publication was unreasonable due to the seriousness of the imputations and the defendant’s failure to verify the information or seek his side of the story.
• The court noted that Mr. O’Hara did not attempt to correct the public misrepresentation of his views, which led to the defendant reasonably assuming the accuracy of the newspaper article on which he based his letter.
• Given the plaintiff’s inactivity in correcting the misrepresentation and the reciprocal interest among club members, the court concluded that the publication was reasonable.

Upon the plaintiff’s appeal, the court considered whether the trial judge erred in upholding the defence of qualified privilege. The court found that the initial judge was correct in their judgement and dismissed the appeal, ordering the appellant to pay the respondent’s fees.

Case Summary – Chow v Un [2017] NSWDC 254

In this case, the plaintiffs sued the defendant, Chi Keong Un, for defamation that occurred in a pamphlet distributed in the foyer of a building where a Chinese community association meeting was to be held [Catchwords]. The allegedly defamatory imputations included that the first plaintiff is bankrupt in Hong Kong and concealed such bankruptcy and that the second plaintiff has mental issues. The defendant pleaded the defence of qualified privilege.

Common Law Qualified Privilege

• The court assessed whether the pamphlet was published on an occasion of qualified privilege, which requires a reciprocal duty and interest between the communicator and the recipients.
• The publication, aimed at members of the association and relevant authorities, was argued to be in the interest of the recipients, as it concerned the governance and integrity of the association.
• The court found that while the pamphlet addressed significant issues, the communication extended beyond the association’s members to a wider public without a corresponding duty or interest, thus weakening the defence of qualified privilege.

Statutory Qualified Privilege

• The statutory defence requires that the recipients have an interest or apparent interest in receiving the information, the matter is published in furtherance of that interest, and the publication is reasonable.
• Factors such as the seriousness of the imputations, the steps taken to verify the information, and whether the defendant sought the plaintiffs’ side of the story were considered.
• The court determined that the pamphlet did not meet the reasonableness test under section 30(3) due to the lack of verification and the inflammatory nature of the allegations, failing the statutory qualified privilege defence.

The court found the defence unsuccessful, awarding the first and second plaintiffs $95,000 and $65,000 respectively [Orders].

Previous Employers / Employees

Defamation in the context of former employers and employees is a critical issue that arises particularly during the exchange of job references and professional recommendations. When a previous employer provides a reference, the information conveyed must be accurate and fair, as false, or malicious statements can severely damage an individual’s reputation and future employment prospects.

Defamatory remarks, whether intentional or not, can lead to significant legal repercussions for the employer and emotional and financial distress for the employee. Understanding the fine line between honest feedback and defamatory comments is essential for maintaining professional integrity and avoiding legal pitfalls.

The dynamics of defamation in employment references often revolve around the balance between transparency and discretion. Employers have a responsibility to provide truthful and constructive feedback without crossing into defamation territory. Similarly, employees must be aware of their rights and the potential impact of defamatory statements on their careers.

Legal frameworks, such as qualified privilege, offer some protection to employers when providing references, but this defense is only applicable if the statements are made without malice and are based on credible information. Navigating these complexities requires a thorough understanding of defamation law and its implications within the employment context.

Case Summary – Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98

In this case, the plaintiff, Matt Bowden, a childcare worker, sued his former employer, KSMC Holdings Pty Ltd, for defamation which occurred in an email sent to the parents of the children he previously worked with. After Bowden left his employment at KSMC Holdings, the childcare centre’s director sent an email to 35 parents stating that Bowden was no longer employed due to disciplinary reasons, was not truthful about his studies, and that it was better for him to move on.

The court found that the email was defamatory and ordered KSMC Holdings to pay Bowden $237,970.22 in damages. The judge held that the employer acted maliciously by sending the email to parents.  The Court said:

I find that in publishing the matter complained of, Ms Chapman, the guiding mind of the second defendant, was actuated by malice. Accordingly, the claimed defence of qualified privilege pursuant to s 30 of the Defamation Act does not apply. The compelling inference to be drawn from the fact that the plaintiff was not given a reasonable pre-publication opportunity to respond to the assertions made against him, is that Ms Chapman knew the imputations that were conveyed were false. Knowledge of the falsity of the defamatory material on the part of the defendants is normally taken to be conclusive evidence as to the existence of a desire or motive to injure the plaintiff.

Publication to the Police

There are conflicting rulings in relation to whether complaints to police attract the defence of qualified privilege. Both of the decisions below are by single judges of the District Court and have not been subsequently reviewed.

Case Summary – In Bechara v Bonacorso (No 4) [2010] NSWDC 234, Gibson DCJ concluded that the defence of unlikelihood of harm was valid. This was because the information entered by police officers in COPS entries is accessible only to those authorised by law, specifically other police officers.

These officers, equipped with their training and skills, would assess the information objectively. Individuals who receive defamatory information but have a duty to investigate it will proceed with their investigation without forming a negative opinion about the subject of the publication.  Gibson DCJ stating at [224] & [225]:

I do not accept the submission that the defendant spoke to the police to cause the plaintiff commercial harm, rather than out of concern about the car fire (on the first occasion) or three car fires (on the second occasion) … The plaintiff has failed to discharge his onus concerning malice. The occasions of privilege are not lost. Accordingly, the defence of qualified privilege at common law and pursuant to s 30 succeed.

Case Summary – However, in Sherman v Lamb [2022] QDC 215, Jarro DCJ determined that a police officer’s opinion of the plaintiff “could only be negatively affected” by a complaint.  The court accepted that the substance of Lamb’s complaint was defamatory and likely to harm Sherman’s reputation.

The court found no qualified privilege defence for this publication, as there was no “community of interest” between Lamb and the police officer regarding the non-criminal nature of her allegations.

While a communication aimed at ensuring the detection of crime may be protected, not all publications to the police are made under the protection of qualified privilege. They are only privileged if made with an honest intent to promote the investigation of the alleged crime.

Case Summary – In Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299, the New South Wales Court of Appeal dealt with defamation claims involving the application of qualified privilege in communications to police.  Hodgson JA Ipp JA Handley AJA said (when talking about the previous case):

In effect, her Honour found that, as Ms Hart did not believe that the plaintiffs had committed the offences that she had reported to the police officers (and as she invented the story that she gave to the police officers), the occasions when the defamatory material were published were not privileged. Further, her Honour found that, if the occasions were privileged, as Ms Hart was conveying information to the police officers that she knew to be false, the imputations she published were not relevant or germane to those occasions. Thus, her Honour found, none of the publications was published on an occasion protected by qualified privilege.

The court found that Ms. Hart invented her allegations against the plaintiffs, indicating malice. This malice defeated any claim to qualified privilege because the defamatory statements were not made in good faith.

The court dismissed the appeals, upholding the trial judge’s findings that Ms. Hart’s conduct was malicious and that her statements were not protected by qualified privilege due to their dishonest nature.

The Defence of Qualified Privilege – Conclusion

The defence of qualified privilege in defamation law is designed to balance the right to protect one’s reputation against the need for freedom of expression, especially in matters of public interest. It provides a safeguard for publishers who disseminate potentially defamatory statements, provided they act without malice and in a reasonable manner under the given circumstances.

For the defence to be successful, several key conditions must be met:

1. Interest or Duty: The recipient must have a legitimate interest or duty to receive the information, and the publisher must have a corresponding duty or interest to communicate it.
2. Reasonableness: The publisher’s conduct in making the defamatory statement must be reasonable, taking into account the context and manner of publication.
3. Absence of Malice: The defence is invalidated if the plaintiff can prove that the publication was motivated by malice.

Statutory provisions, particularly under the Defamation Act, provide detailed criteria for establishing this defence, emphasising the need for the defendant to prove that their actions were justified and reasonable given the circumstances. Courts retain broad discretion to consider various factors, such as the seriousness of the defamatory statement, the steps taken to verify the information, and the overall context in which the statement was made.

Overall, the defence of qualified privilege plays a crucial role in ensuring that necessary and truthful communications can occur without the constant threat of defamation litigation, provided that these communications are made responsibly and without malicious intent.

The Defence of Qualified Privilege – FAQ

The following FAQ section provides detailed answers to common questions about the defence of qualified privilege in Australian defamation law.

These FAQs aim to clarify the principles, applications, and significance of qualified privilege, offering insights into how it balances the protection of reputation with the need for free speech.

Can Qualified privilege still apply if the publication was false?

The defence can still apply even if the defamatory material is false, provided the defendant did not believe it to be untrue at the time of publication. Proving that the defendant knew the material was false at the time of publication can destroy the defence.

What is qualified privilege in defamation law?

Qualified privilege is a legal defence in defamation law that protects individuals who make defamatory statements under certain conditions. It allows for the publication of defamatory material if it is done without malice, in good faith, and in situations where both the publisher and the recipient have a legitimate interest or duty in the communication. This defence helps balance the protection of reputation with the need for free speech on matters of public interest.

When can the defence of qualified privilege be invoked?

The defence can be invoked when the publisher can prove that the recipient has an interest or apparent interest in the information, the information is published in the course of providing that information, and the conduct of the publisher is reasonable in the circumstances. The communication must serve a legitimate purpose, and the publisher must act without malice and with reasonable grounds for believing the information is true.

What does ‘reasonable conduct’ mean in the context of qualified privilege?

Reasonable conduct refers to the behaviour of the publisher when making the defamatory statement. Factors considered include the relationship between the publisher and the recipient, the context and manner of publication, whether the information was verified, and whether the publication was proportionate to the interest being served. Reasonableness ensures that the publication was appropriate given the circumstances.

How does malice affect the defence of qualified privilege?

The presence of malice defeats the defence of qualified privilege. Malice, in this context, means that the publisher had an improper motive or purpose in making the defamatory statement. If the plaintiff can prove that the publication was actuated by malice, the defence is invalidated, even if the other conditions for qualified privilege are met.

Can qualified privilege apply to false statements?

Yes, qualified privilege can apply to false statements if the publisher did not believe the statement was false at the time of publication. The defence protects communications made in good faith where the publisher had reasonable grounds to believe the information was true. However, if the publisher knew the information was false or acted recklessly regarding its truth, the defence is not available.

What are the statutory requirements for qualified privilege under the Defamation Act 2005 (Qld)?

Under Section 30 of the Defamation Act 2005 (Qld), the defence of qualified privilege applies if the defendant proves that the recipient has an interest or apparent interest in receiving the information, the information is published in the course of providing that information, and the conduct of the defendant is reasonable. The Act outlines specific factors that courts may consider in determining reasonableness.

What factors do courts consider when assessing reasonableness?

Courts consider various factors, including the seriousness of the defamatory statement, the extent to which the publication distinguishes between suspicions, allegations, and proven facts, the nature of the business environment, whether the publication was made expeditiously, and any steps taken to verify the information. These factors help determine whether the publisher acted responsibly and appropriately.

Is qualified privilege applicable to online publications and social media?

Yes, qualified privilege can apply to online publications and social media, provided the conditions for the defence are met. The courts assess the context and reasonableness of the publication, the interest of the recipients, and the conduct of the publisher. Online communications must serve a legitimate purpose and be made without malice, similar to traditional forms of publication.

How does the defence of qualified privilege differ from other defences in defamation law?

Qualified privilege differs from other defences, such as truth (justification) or fair comment, as it does not require the defamatory statement to be true or an opinion based on true facts. Instead, it focuses on the context and purpose of the communication, the relationship between the parties, and the reasonableness of the publisher’s conduct. It protects certain communications made in good faith and without malice.

Can qualified privilege apply to communications within closed groups or organisations?

Yes, qualified privilege can apply to communications within closed groups or organisations, such as body corporates or club email lists. The defence is available if the communication serves a legitimate interest or duty among the members, and the publisher acts reasonably and without malice. The close-knit nature of these groups means that defamatory statements can have significant impacts, so the context is carefully considered.

What is the historical origin of qualified privilege?

Qualified privilege originated in English common law to protect necessary communications for societal welfare, even if they were defamatory and untrue. Early cases like Edmondson v Stephenson and Toogood v Spyring established the principle that statements made in the discharge of a public or private duty are protected if made without malice. The defence has evolved to balance freedom of speech and protection of reputation.

How has the defence of qualified privilege evolved in Australia?

In Australia, the defence of qualified privilege has been shaped by both common law and statutory provisions. Key cases like Lange v Australian Broadcasting Corporation extended the defence to cover political communications, emphasising the importance of free speech in a democracy. The Defamation Act 2005 (Qld) further codified the defence, specifying the conditions under which it can be applied.

What role does the jury play in defamation proceedings involving qualified privilege?

In defamation proceedings tried by a jury, it is the jury’s role to determine whether the defence of qualified privilege is established. The jury considers the evidence presented, including the context and reasonableness of the publication, the interest of the recipients, and the conduct of the publisher. The judge provides guidance on the legal principles, but the jury decides the factual issues.

Can employers use qualified privilege when providing job references?

Yes, employers can use the defence of qualified privilege when providing job references, as long as the statements made are honest, relevant, and without malice. The communication must serve a legitimate interest or duty, such as informing a prospective employer about an employee’s qualifications and performance. Malicious or knowingly false statements would invalidate the defence.

What is the impact of excessive publication on the defence of qualified privilege?

Excessive publication can defeat the defence of qualified privilege. This occurs when the defamatory statement is made available to a wider audience than necessary to fulfil the interest or duty. Courts assess whether the extent of the publication was appropriate given the circumstances, and if it was excessive, the defence may not be applicable.

What is an example of a qualified privilege?

An example of qualified privilege is a job reference provided by a former employer to a prospective employer. The former employer has a duty to provide honest and relevant information about the employee’s performance, and the prospective employer has an interest in receiving this information to make an informed hiring decision. As long as the statements made are truthful, reasonable, and not motivated by malice, the former employer is protected by qualified privilege from defamation claims.

Why is qualified privilege important?

Qualified privilege is important because it protects freedom of expression in situations where there is a legitimate need to communicate potentially defamatory information. It allows individuals and organisations to speak openly and honestly about matters of public interest, professional competence, or other significant issues without the constant fear of defamation lawsuits. This protection encourages the flow of truthful and useful information, which is vital for the functioning of a democratic society and the protection of communal and professional interests.