Malice in Defamation Claims: A Comprehensive Guide

The Role of Malice in Defamation Claims

Malice in defamation claims refers to an improper or dishonest motive behind the publication of a defamatory statement. It is not merely ill will or hostility towards the plaintiff. Still, it involves acting with a dominant purpose foreign to the duty or interest that would otherwise justify the publication.

As outlined in Roberts v Bass (2002) 212 CLR 1, the High Court confirmed that malice is not simply about proving bias, recklessness, or a failure to check facts. Instead, it is about demonstrating that the defendant acted with an ulterior motive, such as:

1. A desire to cause harm or injure the plaintiff’s reputation.
2. Knowing falsity – publishing something while aware that it is untrue.
3. Reckless indifference – publishing without caring whether the statement is true or false.

Proving malice is crucial in defamation cases because it removes the legal protection that certain defences provide to the defendant.

Overview of Defamation Law in Australia

Defamation law in Australia is designed to protect individuals and entities from reputational harm caused by false or misleading statements. Governed primarily by the Defamation Act 2005, which has been adopted with slight variations across all states and territories, the law balances two competing interests:

1. The right to freedom of speech and public interest communication
2. The protection of personal and professional reputations

Under Australian defamation law, a person can sue for defamation if they can establish four (4) key elements:

1. A publication was made to at least one (1) third party.
2. The publication identified or could identify the plaintiff.
3. The publication conveyed defamatory imputations—that is, it was likely to cause harm to the plaintiff’s reputation by lowering their standing in the community, exposing them to ridicule, or causing them to be shunned.
4. The publication caused ‘serious harm’ to the plaintiff.

Unlike some jurisdictions, Australia does not require a plaintiff to prove actual damage. Defamation is actionable per se, meaning harm to reputation is presumed once a defamatory statement is established.

Defendants can rely on several defences, including (inter alia):

1. Truth (Justification) – Defamation is not established if the statement is substantially true.
2. Qualified Privilege – If the statement was made on an occasion of legal, moral, or social duty, the defendant may be protected, provided they acted reasonably and without malice.
3. Honest Opinion – A statement of opinion (rather than fact) based on proper material may be protected.

However, malice can defeat many of these defences, making it one of the most critical factors in defamation litigation.

What Does the Law Say about Malice in Defamation?

The following sections of the states’ Defamation Acts 2005 speak to the malice element.  They include:

New South Wales – Section 24(2) of the Defamation Act 2005 (NSW) says:

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Northern Territory – Section 21(2) of the Defamation Act 2005 (NT) says:

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Queensland – Section 24(2) of the Defamation Act 2005 (Qld) says:

(2) If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

South Australia – Section 22(2) of the Defamation Act 2005 (SA) says:

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Tasmania – Section 24(2) of the Defamation Act 2005 (Tas) says:

(2)  If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Victoria – Section 24(2) of the Defamation Act 2005 (Vic) says:

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Western Australia – Section 24(2) of the Defamation Act 2005 (WA) says:

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

This means that if the plaintiff of a defamation matter can prove that the defendant published the defamatory material in malice, a defence they may have utilised will be dismissed.

Why Malice is a Critical Factor in Defeating Defences

Malice is an influential factor in defamation litigation. While proving defamation is already a significant hurdle, proving malice can be even more complex, requiring strong evidence of dishonest motives or recklessness.

However, when established, it strips defendants of key legal protections, defeats otherwise strong defences, and maximises damages for plaintiffs.

Defeating the Defence of Qualified Privilege

Qualified privilege protects individuals and organisations that publish defamatory material in circumstances where they have a duty or interest in doing so. This defence applies where:

1. The recipient has an interest or apparent interest in the information.
2. The publication was made in furtherance of that interest.
3. The defendant acted reasonably in the circumstances.

However, this defence is entirely defeated if the plaintiff can prove malice. For example, in Kalil v Eppinga [2023] NSWDC 107, the court held that a lack of honest belief in the truth of a statement or an improper motive could be sufficient to establish malice and render the defence of qualified privilege inapplicable.

Overcoming the Defence of Honest Opinion

The defence of honest opinion allows individuals to express opinions, even if they are harsh or damaging, provided that:

1. The opinion is based on proper material (e.g., facts that are true or widely accepted).
2. The publisher genuinely holds it.

However, if a plaintiff proves that a statement was not a genuine opinion but was motivated by malice, the defence collapses.

Courts will examine whether the publisher deliberately misrepresented the facts to harm the plaintiff rather than to express a legitimate viewpoint.

Strengthening the Plaintiff’s Case for Damages

Even if a defendant does not rely on a specific defence, proving malice can increase the severity of damages awarded. Courts consider malice when determining:

1. General damages—Compensation for harm to reputation.
2. Aggravated damages—Additional damages where the defendant’s conduct was improper, such as refusing to apologise or persisting in a false claim.

For instance, in Bowden v KSMC Holdings Pty Ltd [2019] NSWDC 98, the court found that the employer acted maliciously in defamatory statements about an employee, leading to substantial damages of $237,970.22.

What is Malice in Defamation?

Malice is a fundamental concept in defamation law that can be decisive in defeating defences and determining the severity of damages.

While defamation laws aim to balance freedom of expression and protection of reputation, malice can strip defendants of certain legal protections and significantly impact a case’s outcome.

In defamation law, malice is an improper, dishonest, or ulterior motive behind a defamatory publication. It is not simply a strong dislike or personal hostility toward the plaintiff but rather an intentional misuse of the publication occasion for a purpose foreign to the duty or interest that would otherwise justify it.

For malice to be established, the plaintiff must prove that:

1. The defendant had an improper or dominant motive in making the statement.
2. The publication was made with knowledge of its falsity or reckless disregard for the truth.
3. The defendant’s purpose in making the statement was unrelated to any legal, moral, or social duty or interest.

Case Law: Roberts v Bass (2002) 212 CLR 1 – The High Court of Australia in Roberts v Bass clarified that malice is not merely ill-will, spite, or bias. Instead, malice is proven where:

1. The defendant knew the statement was false at publication.
2. The defendant was recklessly indifferent to whether the statement was true or false.
3. The dominant purpose of publishing the statement was to harm the plaintiff rather than to communicate information in the public interest.

This case remains a cornerstone in Australian defamation law, reinforcing that subjective hostility alone is not enough—there must be a misuse of the occasion of publication.

Historical Development of Malice in Defamation

The concept of malice in defamation law has evolved over centuries, rooted in English common law principles later adopted in Australian jurisprudence.

Historically, English courts developed the idea that some defamatory statements should be protected from liability when made under circumstances of legal, social, or moral duty.

These protections formed the basis of the defence of qualified privilege, which allows individuals to make statements without fear of defamation claims, provided they act honestly and in good faith.

However, courts also recognised that this privilege should not be abused. The privilege could be lost if a statement was made with malicious intent, leading to the development of malice to defeat qualified privilege.

Malice in Defamation – Australian Case Law

Toogood v Spyring (1834) 149 ER 1044: Established that statements made during duty should be protected unless made with express malice.

Roberts v Bass (2002) 212 CLR 1: Reinforced that malice means more than hostility—it requires an improper or dishonest purpose.

Bowden v KSMC Holdings Pty Ltd (2019) NSWDC 98: Demonstrated how malicious intent in workplace communications could lead to higher damages in defamation claims.

Over time, Australian courts have refined the scope of malice, emphasising that it is not a broad concept covering all forms of hostile intent but a specific legal standard requiring improper purpose.

How Malice Differs from Ill-Will, Bias, and Recklessness

While malice is often confused with ill-will, bias, and recklessness, courts have clearly distinguished these concepts.

Malice in Defamation – Malice vs. Ill-Will

Ill-will refers to personal hostility or a negative opinion about someone.  Malice requires an improper purpose beyond mere dislike—it must be proven that the dominant motive was to harm, not to communicate information honestly.

Example: A journalist may strongly dislike politicians and write negative reports about them. If those reports are based on accurate information, they are not malicious, even if the journalist harbours personal animosity.

Malice in Defamation – Malice vs. Bias and Prejudice

Bias refers to a preconceived notion or favouritism that may influence judgment. Prejudice is an unfair or unreasonable opinion formed without a proper basis. Malice goes further, requiring intentional misuse of the occasion to harm the plaintiff.

Example: A newspaper might be biased against a company and frequently publish critical stories about its business practices. However, if those reports are based on verified facts, they are not malicious. If the newspaper knowingly publishes false information with the intent to destroy the company’s reputation, malice may be established.

Malice in Defamation – Malice vs. Recklessness

Recklessness means publishing a statement without caring whether it is true or false.

Malice requires intent—the defendant must have published with a dominant improper purpose rather than just failing to verify information.

Example: A blogger might carelessly spread false rumours about a celebrity without checking the facts. While reckless, this is not necessarily malicious unless it can be proven that the blogger’s main motive was to harm the celebrity’s reputation rather than just being negligent.

Malice in defamation law is not merely about ill will, hostility, or recklessness—it is a specific legal concept requiring proof of an improper dominant purpose. The historical evolution of malice in Australian defamation law has ensured that legal protections such as qualified privilege are not misused to shield defamatory statements made with ulterior motives.

By distinguishing malice from bias, ill-will, and recklessness, courts have set a high threshold for plaintiffs to overcome—but when malice is proven, defences collapse, damages increase, and liability is firmly established.

The Legal Test for Malice in Defamation

Malice plays a crucial role in defamation law, particularly in defeating defences such as qualified privilege. However, proving malice is a complex legal challenge, requiring clear evidence that the dominant motive behind the defamatory publication was improper. The legal test for malice in Australia has been shaped by key High Court decisions, with Roberts v Bass (2002) 212 CLR 1 being the most influential case in defining how malice is established.

The Burden of Proof: Who Must Prove Malice?

In Australian defamation law, the plaintiff has the burden of proving malice. This means the person alleging that a defamatory statement was made with malice must provide sufficient evidence to persuade the court that malice existed.

The key principles of the burden of proof in malice cases include (inter alia):

1. Honesty of Purpose is Presumed – Courts start from the assumption that defendants act honestly and in good faith.
2. The Plaintiff Must Prove Malice – The plaintiff must present clear and convincing evidence that the defendant acted with an improper or dishonest motive.
3. Malice Must Be the Dominant Purpose – It is not enough to show ill-will or dislike; the plaintiff must prove that the primary reason for publication was to cause harm or to act beyond the duty or interest that justified the statement.

Since qualified privilege and honest opinion are strong defences in defamation, proving malice is often the only way for plaintiffs to overcome them. However, mere negligence, bias, or recklessness is insufficient—the plaintiff must establish that the defendant’s dominant reason for publishing the statement was not legitimate.

For malice to be proven, the plaintiff must show that the dominant purpose behind the publication was foreign to the interest or duty that would otherwise justify it.

A statement is malicious if:

1. The publisher knew it was false but published it anyway.
2. The publisher was recklessly indifferent to its truth.
3. The publication was made with the primary aim of harming the plaintiff rather than fulfilling a legal, social, or moral duty.

A defendant could dislike or even hate the plaintiff and still not be guilty of malice if they acted with a legitimate purpose.  Malice is not proven simply by showing bias, prejudice, or bad feelings.  Personal hostility does not automatically establish an improper purpose.

The Briginshaw Principle: The High Standard of Proof

In Australian civil law, courts apply the Briginshaw principle when determining allegations that involve serious wrongdoing, such as malice in defamation.

The Briginshaw principle (from Briginshaw v Briginshaw (1938) 60 CLR 336) requires that:

1. The standard of proof is on the balance of probabilities, but
2. Stronger and clearer evidence for serious allegations, such as malice, is needed.

Malice is a serious accusation that can have major legal consequences for the defendant. Courts require more than just speculation—there must be credible, substantial evidence. The more serious the allegation, the more convincing the proof must be.

Application of Briginshaw to Malice Cases

Plaintiffs cannot rely on weak or circumstantial evidence. Courts will assess all available evidence, including witness testimony, emails, and prior conduct. If the dominant improper purpose is not established, the court will presume honesty on the defendant’s part.

The Briginshaw principle ensures that defamation cases involving malice are not decided on suspicion alone—plaintiffs must meet a high threshold of proof to succeed.

Proving Malice in Defamation Cases

The legal test for malice in Australia is stringent and highly fact-specific. Plaintiffs bear the burden of proof and must establish that malice was the dominant purpose of the defamatory statement. The landmark case of Roberts v Bass (2002) confirmed that mere hostility or recklessness is insufficient – plaintiffs must show that the defendant knowingly misused the occasion to inflict reputational harm.

Courts apply the Briginshaw principle to ensure that malice is proven with clear and convincing evidence. Malice is one of defamation litigation’s most challenging but powerful arguments. If malice is established, defences collapse, and significant damages can be awarded.

Types of Malice in Defamation Claims

Malice plays a pivotal role in defamation law, particularly in defeating defences such as qualified privilege and honest opinion. Courts have recognised different forms of malice, each of which can render an otherwise legally protected statement actionable in defamation. Malice is generally classified into:

1. Express Malice – Where there is a direct and deliberate intention to harm.
2. Inferred Malice – Where malice is deduced from reckless disregard for the truth or wilful blindness.
3. Corporate Malice – Where a company, through its agents, acts with a dominant improper purpose in publishing defamatory material.

Understanding these distinctions is crucial, as each type of malice has unique evidentiary requirements and plays a different role in defamation litigation.

Express Malice: Direct Intention to Harm

Express malice exists where a defendant publishes defamatory material with the primary intention of harming the plaintiff. Unlike other forms of malice, express malice is not inferred from conduct—it is demonstrated through clear and direct evidence of an ulterior motive.

1. The dominant purpose of publication was to injure the plaintiff’s reputation rather than to communicate information in the public interest.
2. The publisher acted with knowledge of falsity—they knew the statement was false but published it anyway.
3. There was a history of hostility or animosity between the parties, indicating a preconceived intent to harm.

An example of express malice is a newspaper editor who is aware that a public figure has never been convicted of fraud and publishes an article stating that they have. If it is proven that the editor deliberately fabricated the claim, the dominant purpose is reputational harm, and express malice is established.

If express malice is proven, it completely defeats defences such as:

1. Qualified Privilege – The statement was not made for a legitimate purpose.
2. Honest Opinion – The statement was not a genuinely held belief but an intentional lie.

Inferred Malice: Recklessness or Wilful Blindness

Inferred malice arises when a defendant:

1. Recklessly disregards the truth of a defamatory statement.
2. Fails to investigate facts despite knowing the publication may be false.
3. Is wilfully blind – ignoring clear evidence that contradicts their statement.

Unlike express malice, inferred malice is not directly proven but deduced from conduct. Courts examine the circumstances of the publication, the defendant’s state of mind, and their failure to verify information.

The key indicators of inferred malice include (inter alia):

1. The defendant made no reasonable attempt to verify the truth of their statement.
2. The defendant ignored contradictory evidence or refused to investigate further.
3. The statement was published with reckless indifference to its accuracy.

Case Law: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

In Barbaro v Amalgamated, Justice Hunt in Barbaro distinguished between express malice and recklessness, stating that:

1. A person who unquestioningly accepts defamatory information without inquiry can be found to have acted with malice.
2. A failure to check facts does not automatically mean malice—but when combined with a disregard for truth, malice can be inferred.

Example of inferred malice – A journalist receives an anonymous tip that a politician is involved in illegal activities but makes no effort to verify the claim before publishing it. The court may infer malice if evidence shows that the journalist had reasons to doubt the tip but ignored it.

Impact of Inferred Malice on Defences:

1. Qualified Privilege Defeated – Courts assume that defamation protections apply only when a statement is made honestly. If recklessness is established, privilege is lost.
2. Honest Opinion Defeated – If a publisher had serious doubts about their claims but proceeded anyway, they cannot argue that their opinion was based on proper material.

Corporations and Malice: Proving Malice in Corporate Publications

Malice in corporate defamation occurs when a company, through its employees or directors, publishes defamatory material with an improper purpose. Since corporations act through agents, proving corporate malice requires showing that a key individual responsible for the publication acted with malice.

Some of the key challenges in proving corporate malice include (inter alia):

1. Attributing malice to the company – The plaintiff must prove that a decision-maker or key employee had an improper motive.
2. Corporate knowledge of falsity – Malice can be established if senior executives know a statement is false or recklessly disregard its truth.
3. Company-wide culture – If a pattern of misconduct exists, courts may infer malice.

Case Law: Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig (2019) NSWDC 98

In Bowden v KSMC Holdings, the childcare centre director sent defamatory emails to parents about a former employee, stating that he had been dismissed for misconduct.

The court found that the director acted with malice, as the statements were made without any legitimate reason and were intended to harm the plaintiff’s employment prospects.

As a result, the defence of qualified privilege failed, and the company was ordered to pay $237,970.22 in damages.

Example of corporate malice – A corporation runs false advertising against a competitor, falsely claiming their product contains harmful chemicals. If emails reveal executives knew the claim was untrue, the company’s dominant purpose was harm, proving malice.

Impact of Malice on Corporate Defences:

1. Corporate Qualified Privilege Fails – If a business acts in bad faith, courts will not protect defamatory statements made in a business context.
2. Higher Damages Awarded – Corporations can face aggravated damages if their malice is proven, particularly in employment, competition, or media defamation cases.

Malice in defamation takes different forms, but each defeats key legal defences and exposes defendants to higher damages.

1. Express Malice – Involves a direct intent to harm, usually with knowledge of falsity.
2. Inferred Malice – Arises from recklessness or wilful blindness, where the defendant ignored the truth.
3. Corporate Malice – Requires proving that a decision-maker within a company acted with improper purpose.

Proving malice is difficult but not impossible. Courts will assess statements, conduct, and internal communications to determine whether an improper purpose was the dominant motive. Where malice is found, defences such as qualified privilege collapse, and plaintiffs may be awarded significant damages.

Evidence Required to Prove Malice in Defamation Cases

Proving malice in defamation cases is challenging. Courts require clear and convincing evidence that the dominant purpose of the defamatory publication was improper.

Since malice is often hidden behind pretexts of public interest or duty, plaintiffs must rely on intrinsic and extrinsic evidence to establish the defendant’s state of mind at publication.

Types of Evidence Used to Prove Malice

Courts generally assess two main types of evidence:

1. Intrinsic Evidence – Evidence found within the publication, such as tone, language, and extent of dissemination.
2. Extrinsic Evidence – Evidence outside the publication, such as prior conduct, refusal to apologise, and attempts to conceal facts.

Each type of evidence plays a critical role in showing that the defendant misused the occasion of publication to harm the plaintiff’s reputation rather than acting in good faith.

Intrinsic Evidence: Clues from the Publication Itself

A publication’s choice of words, tone, and phrasing can strongly indicate malice. Courts assess:

1. Whether the language was excessively harsh, inflammatory, or exaggerated.
2. If sarcasm, ridicule, or personal attacks were used unnecessarily.
3. Whether the statement was presented as a factual claim or a baseless accusation.

If a publication goes beyond a reasonable expression of opinion and instead aims to humiliate or ridicule, courts may infer malice.

Example – A news article discussing allegations of financial misconduct could be written neutrally or sensationalised. Compare:

• Neutral: “Mr Smith is under investigation for alleged financial irregularities.”
• Malicious: “Mr Smith is a crook and a fraudster who has been stealing for years!”

Without supporting evidence, the second statement suggests an intent to harm, potentially proving malice.

The wider the audience, the more likely malice may be inferred. Courts will examine:

1. Where the defamatory material was published (e.g., a private email vs. a widely circulated news article).
2. Who had access to the statement—was it targeted at relevant parties, or was it deliberately spread to harm reputation?
3. Whether publication was excessive—was it necessary to convey the message, or was the defendant acting vindictively?

Case Law: Cripps v Vakras [2014] VSC 279

In Cripps v Vakras, defamatory statements were published on a widely accessible website rather than in private communication. The court found that the deliberate choice to make the accusations public pointed to malicious intent rather than a genuine attempt to inform.

Courts assess whether the defendant’s response was reasonable given the facts.  Malice may be inferred if the accusations are extreme compared to the actual conduct. If hyperbolic language is used, it suggests the publisher was more interested in harming reputation than providing balanced information.

Some examples would include:

1. A minor dispute between business partners is framed as a massive fraud scheme without evidence.
2. A bad restaurant review claims the establishment engages in health violations and criminal activity without proof.

If a defendant greatly exaggerates accusations beyond the facts, courts may conclude that their dominant purpose was not legitimate.

Extrinsic Evidence: Context Outside the Publication

Courts will examine the history between the plaintiff and the defendant to determine whether malice existed before publication. This includes:

1. Past conflicts or legal disputes between the parties.
2. Evidence of a vendetta or ongoing hostility.
3. Prior attempts to damage the plaintiff’s reputation in other settings.

A genuine mistake in publishing defamatory material does not necessarily indicate malice. However, if:

1. The defendant knows the statement is false but refuses to correct it or
2. The defendant doubles down on their claims despite evidence proving them wrong,

this can strongly suggest intentional wrongdoing.

Example – A journalist writes a false article about a celebrity’s involvement in illegal activities.  The celebrity provides evidence proving the claim false and requests a retraction. The journalist refuses to issue a correction and continues publishing similar false claims.

This conduct suggests the defendant’s motive is not public interest but personal harm, supporting a finding of malice.

Attempts to Mislead or Conceal Facts

If a defendant:

1. Hides exculpatory evidence,
2. Deletes emails, records, or messages,
3. Attempts to fabricate supporting evidence,

Courts may infer that they acted with a dishonest or improper motive.

Case Law: Bowden v KSMC Holdings Pty Ltd (2019) NSWDC 98

In Bowden v KSMC Holdings, the childcare centre director made false statements about a former employee to parents. When challenged, the director refused to provide supporting evidence and attempted to justify the statement with misleading claims. The court ruled that these actions demonstrated malice, as the director was not genuinely trying to inform parents but to harm the plaintiff’s reputation.

In summary, proving malice in defamation requires a combination of intrinsic and extrinsic evidence. Courts look at:

• Intrinsic Evidence (The Publication Itself):
  • Language and tone – Was it neutral or inflammatory?
  • Extent of the publication – Was it excessive?
  • Disproportion between facts and accusations – Were claims exaggerated?

• Extrinsic Evidence (Outside the Publication)
  • Prior conduct – Was there a history of hostility?
  • Refusal to apologise – Did the defendant continue despite knowing the truth?
  • Attempts to mislead – Did the defendant hide or fabricate evidence?

Malice can be established when these elements are proven, defeating key defences such as qualified privilege and honest opinion. Courts take a holistic approach, considering the defamatory statement’s content and context to determine whether the defendant’s true motive was reputational harm.

Proving Malice in Court

Proving malice in defamation cases is a challenging but powerful legal strategy that can defeat key defences such as qualified privilege and honest opinion. Because malice relates to a person’s state of mind, it is rarely expressly admitted by a defendant.

Instead, plaintiffs must rely on circumstantial evidence, including the defendant’s conduct, communications, and inconsistencies, to prove that the dominant motive behind the defamatory publication was improper.

Courts use several key tools to assess malice, including:

1. Cross-examination – Exposing inconsistencies or improper motives in the defendant’s testimony.
2. Internal Communications and Emails – Uncovering evidence of prior knowledge of falsity or reckless disregard for the truth.
3. Expert Evidence – Providing independent analysis to support dishonesty, bias, or bad faith claims.

Each of these elements plays a crucial role in demonstrating that the defendant knowingly misused the occasion of publication to cause harm rather than acting in good faith.

The Role of Cross-Examination in Establishing Improper Motive

Cross-examination is one of the most effective tools for proving malice because it allows plaintiffs to challenge the credibility of the defendant’s testimony. Courts often rely on cross-examination to:

1. Expose contradictions between what the defendant claims and their actual conduct.
2. Force the defendant to admit reckless behaviour or bias.
3. Highlight the lack of any legitimate reason for the defamatory publication.

A well-executed cross-examination can reveal ulterior motives and establish that the defendant acted dishonestly or with reckless disregard for the truth.

An example of cross-examination revealing malice could be:

Imagine a journalist publishing an article accusing a businessman of fraud. During cross-examination, the journalist admits that:

1. They had no direct evidence of fraud.
2. They never attempted to contact the businessman for comment.
3. Colleagues warned them that the allegations were baseless but published them anyway.

These admissions support an inference of malice, as they show recklessness or a deliberate intent to cause harm.

The Importance of Internal Communications and Emails

In many defamation cases, internal emails, text messages, and corporate communications provide critical evidence of malice. These records can reveal:

1. Deliberate efforts to fabricate or exaggerate allegations.
2. Discussions showed the defendant knew the statements were false.
3. Pressure from senior executives or editors to publish damaging material for personal or financial gain.

If internal communications contradict the defendant’s public justifications, courts may conclude that the defendant acted with an improper motive.

An example of internal communications proving malice: A newspaper publishes a defamatory article about a celebrity, claiming they were involved in criminal activity. During discovery, internal emails between journalists reveal:

1. Editors pressured reporters to publish the story quickly without checking the facts.
2. The journalist admitted in private emails that they had doubts about the sources.
3. A senior executive said, “We don’t care if it’s true; it will sell papers.”

These communications directly contradict good faith journalism claims and support a malice finding.  Key evidence from internal communications can include:

1. Pre-publication discussions – Did the defendant know the statement was false?
2. Post-publication conduct – Did the defendant continue making the claims despite knowing they were false?
3. Pressure from third parties – Was the statement published to serve a political, financial, or personal agenda?

If internal communications show bad faith, they strengthen the plaintiff’s case for malice.

Expert Evidence in Proving Malice

Expert evidence can help courts determine whether the defendant acted recklessly, dishonestly, or with bias. Experts may be called upon to:

1. Analyse the credibility of sources – Did the defendant rely on unverified or unreliable sources?
2. Assess journalistic standards – Did the publication violate professional ethics?
3. Examine language and tone – Was the statement framed in a way that suggests bias or intentional harm?

Courts often rely on media, communications, and forensic linguistics experts to evaluate whether a statement was made in good faith or with malice. For example, a company falsely claims that a competitor’s product is unsafe in advertising. The plaintiff calls an industry expert who testifies that:

1. Scientific evidence contradicts the defendant’s claims.
2. The defendant’s marketing materials show they deliberately misled consumers.
3. The defendant ignored standard product-testing protocols before making accusations.

This expert testimony demonstrates reckless disregard for the truth, helping to establish malice. An example of the types of experts used in defamation cases can include:

1. Media experts – To assess whether reporting meets ethical journalism standards.
2. Forensic linguists – To analyse tone, word choice, and intent behind defamatory statements.
3. Industry specialists – To evaluate whether statements about a professional or business were knowingly false.

Expert evidence adds credibility to claims of malice and strengthens the plaintiff’s case.

Proving malice in court requires a strategic combination of legal arguments and factual evidence. The most effective methods include:

• Cross-Examination
  • Exposes inconsistencies in testimony.
  • Forces the defendant to justify reckless statements.
  • Can reveal admissions of improper motive.

• Internal Communications and Emails
  • Show whether the defendant knew the statements were false.
  • Reveal deliberate misconduct, fabrication, or exaggeration.
  • Can contradict public justifications, proving an improper motive.

• Expert Evidence
  • Assesses recklessness, bias, and ethical violations.
  • Helps interpret complex evidence (e.g., forensic linguistic analysis).
  • Strengthens the plaintiff’s case by providing independent verification.

By combining these powerful forms of evidence, plaintiffs can convincingly establish malice, ensuring that defamatory statements made with improper motives do not escape legal consequences.

Online Defamation and Malice

The rise of social media and online platforms has drastically changed the landscape of defamation law. Unlike traditional forms of media, where editors and legal teams review content before publication, social media allows individuals to instantly publish unverified, defamatory, and potentially malicious statements to a global audience. Online publications’ speed, reach, and permanence make digital defamation particularly damaging.

When defamatory content is published with malice, courts take a harsh stance, as the ability to cause widespread reputational harm is significantly greater in the digital space.

Social media provides a powerful platform for communication, but it also allows malicious actors to spread false and defamatory content rapidly.  Some common examples of malicious online defamation include:

1. False accusations of criminal activity (e.g., fraud, theft, assault).
2. Malicious business reviews aimed at damaging competitors.
3. Harassment campaigns targeting public figures or private individuals.
4. Defamatory conspiracy theories spread through viral posts.

Unlike traditional media, where journalists and publishers are subject to ethical and legal oversight, individuals on social media can:

1. Publish defamatory statements instantly, with little accountability.
2. Spread false information widely through shares, retweets, and reposts.
3. Use anonymous accounts to make malicious allegations without consequences.
4. Persistently attack victims over time, causing lasting reputational damage.

When malice is proven in online defamation cases, courts are more likely to award aggravated damages because the impact of defamatory online posts is often irreversible.

How Courts Assess Malice in Digital Defamation Cases

Courts assess malice in online defamation by considering the following:

1. The defendant’s knowledge of falsity – Did they publish a false statement despite knowing it was untrue?
2. Reckless disregard for the truth – Did they fail to verify claims before publishing?
3. The intent behind the publication – Was the post made to inform or to harm?
4. Failure to remove or apologise – Did the defendant refuse to retract or double down on false claims?
5. The extent of the publication – Was it shared on widely accessible platforms?

If a defendant continues spreading false claims even after being informed of their inaccuracy, this strengthens the case for malice.

False Sexual Allegations and Malice

False allegations of rape or sexual assault can cause irreparable harm to an individual’s reputation, career, and personal life. When such allegations are made with malice, courts take a severe view, as the consequences for the accused can be devastating.

While victims of sexual assault should feel empowered to come forward, false accusations undermine real survivors and can be weaponised for revenge, coercion, or financial gain.

Malicious Publications of a Sexual Nature (Rape and Sexual Assault)

Some examples of malicious sexual allegations include (inter alia):

1. False rape allegations were made during relationship disputes.
2. Publicly naming and shaming individuals without evidence.
3. Using social media to spread unverified sexual misconduct claims.
4. Malicious claims made in legal proceedings to gain an advantage (e.g., child custody cases).

Accusations of sexual crimes carry a severe social stigma, often irreversible, even if proven false.

1. Employment consequences – The accused may lose their job or career prospects before an investigation is completed.
2. Mental health impact – False allegations can cause severe psychological distress, suicide risk, and social isolation.

Courts recognise the unique and severe consequences of false sexual allegations and will not hesitate to award aggravated damages if malice is proven.

How Courts Assess Malice in False Sexual Allegations

To determine whether a sexual allegation was made with malice, courts consider:

1. Motive – Did the accuser have a reason to lie (e.g., revenge, personal gain)?
2. Inconsistencies in testimony – Did the accuser’s story change significantly?
3. Lack of supporting evidence – Was the accusation based on mere assertion without proof?
4. False reports to police or media – Did the accuser intentionally mislead authorities?
5. Publicity-seeking behaviour – Did the accuser exploit media attention rather than pursue justice?

If a pattern of dishonesty or improper motive is established, courts are more likely to find malice in false sexual allegations.

An example of a false sexual allegation can include a high-profile athlete accused of rape by an ex-partner. The case is widely reported, and the athlete’s career is put on hold. However, during legal proceedings, evidence emerges that:

1. The accuser had previously threatened to ruin the athlete’s career.
2. Surveillance footage contradicts the accuser’s timeline of events.
3. Text messages show the accuser bragging about making false claims.

The court finds that the allegation was fabricated and made with the dominant purpose of causing harm. As a result:

1. The accuser is sued for defamation and found to have acted maliciously.
2. The defendant is awarded significant damages, including aggravated damages, due to the severe reputational harm suffered.

Practical Implications for Malice in Defamation

Malice in defamation claims is difficult to prove but can have serious legal consequences for plaintiffs and defendants. Plaintiffs who successfully establish malice can defeat key defences like qualified privilege and honest opinion. In contrast, defendants who fail to rebut allegations of malice may face substantial damages, including aggravated damages.

Understanding how malice is proven and defended against is crucial for businesses and individuals to navigate defamation risks. This section explores strategies for both plaintiffs and defendants and preventative measures to avoid defamation disputes.

Strategies for Plaintiffs in Proving Malice

To prove malice, plaintiffs must provide clear and convincing evidence that the defendant acted with an improper or dishonest motive.

Intrinsic Evidence (The Publication Itself):

1. Language and Tone – Was the statement excessively harsh, exaggerated, or designed to humiliate?
2. Extent of Publication – Was the statement shared widely or targeted to cause maximum damage?
3. Disproportion to Facts – Was the claim greatly exaggerated beyond the truth?

Extrinsic Evidence (Outside the Publication):

1. Prior Hostility or Grudges – Has the defendant shown a pattern of animosity toward the plaintiff?
2. Refusal to Retract or Apologise – Has the defendant doubled down despite knowing the claim was false?
3. Internal Communications – Are there emails, texts, or documents proving the defendant knew the statement was false?

Showing an Absence of Recklessness

To rebut malice, defendants should demonstrate that they:

1. Relied on credible sources before publishing.
2. Took steps to verify facts before making accusations.
3. Corrected or retracted false statements once new information emerged.

Courts consider whether a defendant made a reasonable effort to mitigate damage after discovering an error.  If a defendant retracts a false statement early and issues an apology, it weakens the plaintiff’s claim of malice.

Challenging the Plaintiff’s Evidence

Defendants should:

1. Dispute the claim that the statement was knowingly false.
2. Argue that there was no improper motive—only negligence or poor judgment.
3. Provide evidence that they acted within a legitimate interest or duty.

By shifting the focus away from bad faith motives, defendants can defend against allegations of malice and limit damages.

Key Takeaways – Malice in Defamation

Malice in defamation law is one of the most serious and complex legal issues to prove.

Establishing an improper motive can destroy defences and lead to higher damages for plaintiffs, while defendants who fail to defend against malice may suffer serious financial and reputational consequences.

For Plaintiffs:

1. Gather intrinsic and extrinsic evidence to prove malice.
2. Use cross-examination to expose reckless or dishonest intent.
3. Leverage expert testimony to support claims of bad faith.

For Defendants:

1. Show a legitimate purpose for the publication.
2. Demonstrate due diligence in verifying claims.
3. Use retractions and apologies to mitigate damages.

For Businesses and Individuals:

1. Be cautious when making accusations online.
2. Implement defamation policies to avoid liability.
3. Seek legal advice before publishing high-risk statements.

The courts take malice seriously because it involves deliberately misusing free speech protections. Understanding how to prove or challenge malice is essential to effectively navigate Australia’s defamation laws, whether pursuing or defending a defamation claim.

Key Cases – Malice in Defamation

The concept of malice plays a critical role in defamation law, particularly in cases where defendants rely on qualified privilege as a defence.

Australian courts have examined malice in various contexts, including political campaigns, media reporting, and workplace disputes, shaping how malice is assessed and proven.

The following cases illustrate how courts have interpreted malice, its impact on defences, and the evidentiary standards required.

Each case provides valuable insights into when qualified privilege is upheld or defeated, depending on the defendant’s motive, knowledge, and conduct.

Roberts v Bass [2002] HCA 57

In this case, the plaintiff, Rodney Bass, sued the defendant, Geoffrey Roberts, for defamation that occurred in three publications made by Roberts and Case during an election campaign that contained. The publications included a mock postcard, a pamphlet with a forged frequent flyer statement, and a “how to vote” card with defamatory statements.

The trial judge found that the publications attracted qualified privilege at common law, as they were made in the context of an election campaign. However, the judge held that Roberts and Case defeated the privilege by malice.

On appeal, the High Court majority held that malice in this context means the publisher used the occasion for an improper or ulterior motive, such as a desire to injure the person defamed [10]. The majority found that the trial judge had applied the wrong test for malice and ordered a retrial to properly assess if Roberts and Case had an improper motive [194, 196]

Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510

In this case, John Marsden, the plaintiff, sued the defendant, Channel 7, for defamation in an episode of ‘Today Tonight’ [1]. The imputations include that Mr Marsden has had sexual intercourse with boys under the age of 18, including a 15-year-old boy under the influence of drugs provided by the plaintiff [3].

Channel 7 pleads the defence of qualified privilege and justification [17].

The court found that while some of the allegations were true, Channel Seven had failed to establish the defence of qualified privilege because it had acted with malice in broadcasting them.

Eppinga v Kalil [2023] NSWCA 287

In this case, the plaintiff, Ms. Eppinga, sued the defendant, Dr. Kalil, a veterinarian, over defamatory statements he made. He alleged that she attempted to steal medication from his veterinary hospital.

At trial, the District Court found that while Dr. Kalil’s statements were defamatory, he had a defence of qualified privilege as the statements were made to protect his business interests [2].

Ms Eppinga appealed this decision, claiming Dr Kalil acted with malice and the trial judge erred in finding he did not. However, the court of appeal agreed that malice was not established [103].

The court examined evidence from Ms Eather, Dr Kalil’s nurse, who established that Dr Kalil had a reasonable cause to believe Ms Eppinga was attempting to steal medication from the practice [44].

They also examined a witness statement made by Dr Kalil to the police, when he stated he saw Ms Eppinga holding medication and thought she was attempting to steal it [11].

This evidence led to the establishment by the court that Dr Kalil honestly believed the material published.

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FAQ with Answers for Malice in Defamation

Malice is a critical factor in Australian defamation law, as it can defeat key defences and lead to higher damages for plaintiffs.

This FAQ section answers common questions about how malice is proven, its impact on defamation cases, and strategies for both plaintiffs and defendants.

What is malice in defamation law?

Malice in defamation law refers to an improper, dishonest, or ulterior motive behind the publication of a defamatory statement. It is not simply ill-will, hostility, or bias towards the plaintiff but rather a misuse of the occasion of publication. Malice is established when a defendant publishes defamatory material, knowing it is false or with reckless disregard for the truth. If proven, malice can defeat legal defences such as qualified privilege and honest opinion.

Why is proving malice critical in a defamation case?

Proving malice is crucial because it removes the legal protection that certain defences provide to a defendant. For example, qualified privilege allows individuals to make statements under a duty or interest, but malice defeats this protection. Courts take malice seriously as it demonstrates that the defendant’s primary intent was to cause harm rather than communicate legitimate information. If malice is established, the plaintiff may receive aggravated damages, leading to a higher compensation award.

How can a plaintiff prove malice in a defamation case?

A plaintiff can prove malice using intrinsic and extrinsic evidence. Intrinsic evidence includes the publication’s language and tone, its distribution’s extent, and whether the statements were exaggerated beyond the facts. Extrinsic evidence includes prior hostility, refusal to apologise, and internal communications showing the defendant knew the statement was false. Courts also assess whether the defendant persisted with false statements despite evidence disproving them, which strongly suggests malice.

What is the difference between malice and recklessness in defamation?

Recklessness means the publisher did not care whether the statement was true or false, while malice involves a deliberate intent to harm. A person can be reckless by failing to verify facts, but this alone does not prove malice. Malice requires an improper dominant purpose, such as using a defamatory statement to damage a competitor’s business or ruin a person’s reputation. If a defendant knowingly publishes false material or ignores contradictory evidence, this may elevate recklessness to malice.

Can the court infer malice?

Yes, courts can infer malice from a defendant’s actions and statements, even if there is no direct admission of intent to harm. If a defendant refuses to retract a false statement, continues to spread defamatory claims, or ignores evidence contradicting their publication, the court may infer malice. The tone and content of the publication, along with internal communications and past conduct, can also indicate an improper motive. In Barbaro v Amalgamated Television Services Pty Ltd (1985), malice was inferred when a journalist failed to check facts despite having reasons to doubt their truth.

How does malice impact the defence of qualified privilege?

Qualified privilege protects individuals who make statements in circumstances of legal, social, or moral duty. However, if a plaintiff proves that the publication was motivated by malice, the defence is defeated. For example, in Kalil v Eppinga (2023), the court found that a lack of honest belief in the truth of a statement or an improper motive could establish malice. If qualified privilege is lost, the defendant is fully liable for defamation and may face significant damages.

Can a social media post be considered malicious in a defamation case?

Yes, courts treat defamatory social media posts with the same seriousness as traditional media publications. If a person posts false accusations online with an intent to harm, courts may infer malice, especially if the statement was widely shared or deliberately exaggerated. In Bolton v Stoltenberg [2018] NSWSC 1518, the defendant made false allegations on Facebook and refused to remove them despite knowing they were untrue, leading the court to find malice. Social media posts can spread rapidly and cause severe reputational damage, increasing the likelihood of aggravated damages if malice is proven.

What role does cross-examination play in proving malice?

Cross-examination is a powerful tool in defamation cases because it can expose inconsistencies in the defendant’s statements. A skilled cross-examination may force the defendant to admit they knew the statement was false or acted with a personal vendetta. Courts may infer malice if the defendant fails to justify their publication, ignores contradictory evidence, or shows bias. In Roberts v Bass (2002), cross-examination revealed that the defendant knowingly spread false information, strengthening the plaintiff’s case.

Can a company be found to have acted with malice in a defamation case?

Yes, companies can be found liable for malice if a decision-maker within the organisation acted with an improper purpose. Malice in corporate defamation often arises when false statements are made about a competitor or an employee in a workplace dispute. In Bowden v KSMC Holdings Pty Ltd (2019), internal emails revealed that a company director knowingly spread false claims to harm an employee’s reputation, leading to a finding of malice. Courts may also infer malice if a company fails to verify statements before publishing defamatory content.

How do courts assess damages when malice is proven?

When malice is proven, courts may award higher damages to reflect the intentional harm caused to the plaintiff. Malice can lead to aggravated damages, which are additional compensation awarded when the defendant’s conduct was reckless, vindictive, or harmful. In Bowden v KSMC Holdings Pty Ltd (2019), the court awarded $237,970.22 in damages after finding that the employer acted maliciously. Courts also consider whether the defendant refused to apologise or continued to spread defamatory statements, which can increase the compensation awarded.

Can a false sexual allegation lead to a defamation claim based on malice?

Yes, if a false sexual allegation is made with an improper motive, the accused may sue for defamation and prove malice. Courts assess whether the accuser had a motive to lie, such as revenge, financial gain, or media attention. In cases where evidence shows the accuser knowingly fabricated claims or ignored contradictory evidence, courts may infer malice. False sexual allegations carry severe reputational consequences, making malice a key factor in determining liability and damages.

Can deleting a defamatory post be used as a defence against malice?

Deleting a defamatory post does not automatically remove liability but may reduce the severity of damages. Courts assess whether the defendant acted promptly and in good faith when removing the content. However, if the defendant initially refused to delete the statement, doubled down on false claims, or attempted to cover up their wrongdoing, this can still support a finding of malice. A failure to apologise or acknowledge wrongdoing may also increase the plaintiff’s chances of proving malice.

What role does expert evidence play in proving malice?

Expert evidence can help courts determine whether a publication was reckless, dishonest, or misleading. Media experts may assess whether journalistic standards were followed, forensic linguists can analyse the intent behind language, and industry specialists can verify whether claims were knowingly false. Expert testimony in Barbaro v Amalgamated Television Services Pty Ltd (1985) helped establish recklessness and improper intent. Expert opinions provide independent verification that strengthens a plaintiff’s case for malice.

Can a public figure claim malice in a defamation lawsuit?

Yes, public figures can claim malice if false statements are made with an improper purpose rather than in the public interest. Courts consider whether the defendant acted recklessly, ignored contradictory evidence, or used defamatory statements as a personal attack. While public figures must tolerate higher levels of scrutiny, they are still protected against deliberate and harmful falsehoods. If malice is proven, the defendant loses their defences, and the public figure may be awarded significant damages.

How can businesses and individuals protect themselves from defamation claims involving malice?

Businesses and individuals should verify facts before publishing statements and avoid making exaggerated or false claims. Implementing clear defamation policies, seeking legal advice before publishing contentious material, and issuing retractions when necessary can help minimise risk. Avoiding personal attacks, inflammatory language, and unverified allegations can also prevent allegations of malice. If sued for defamation, demonstrating reasonable faith efforts to verify information and correct errors can help defend against claims of malice.