A defendant may plead a defence of statutory qualified privilege to defeat a claim for defamation and avoid liability. Qualified privilege acts as a protection for certain communications that pass in environments that require the ready exchange of information, where the publisher and the recipient have some reciprocal interest in the information being exchanged. Qualified privilege is commonly pleaded in cases where defamatory material has passed in, for example, a strata environment.
Whilst each state has their own defamation legislation, the test for a defence of statutory qualified privilege is consistent across Australia. To successfully plead the defence, the defendant must show the following:
- That the recipient had some interest or apparent interest in having information on some subject.
- That the matter was published to the recipient in the course of giving information on that subject.
- That the conduct of the defendant in publishing the matter was reasonable in the circumstances.
The publisher does not need to prove that the allegations made in the publication were true. It is simply necessary that they establish the above three elements.
Interest or apparent interest on the subject
The interest or apparent interest will generally depend upon the environment in which the allegations contained in the defamatory publication are made. Whether an interest was present will be determined by the circumstances. Whether or not the recipient had an apparent interest in the information will depend upon whether, at the time of publication, the publisher held a reasonable belief that the recipient did have some interest in the matters raised in the publication.
The interest or apparent interest will usually arise in a strata environment because members of the strata have an interest in knowing information relating to their strata complex. The subject, in this circumstance, will be the matters and affairs of the strata. Publication in the course of giving information on a subject
The mere existence of an interest or apparent interest does not automatically relieve the publisher of liability for defamation. The publisher must also prove that the defamatory comments made by them were relevant to the subject matter on which they claim the interest.
So, whilst the recipient may have an interest in the subject matter at large, the defamatory allegations made may not fall within that area of interest. As such, for a successful defence of qualified privilege, the matter must be a matter in which the recipient had an interest or apparent interest, and the allegations made must fall within that subject matter.
Again looking at the strata environment, if the publication was made in the course of giving information to members of the strata about the affairs of the strata complex, then this element will likely be met. However, if the information was conveyed to other members of the strata, but referred to the personal situation of a member of the strata, and which personal situation had no relation or impact upon the strata, then the communication would not be privileged.
Reasonable publication in the circumstances
In determining the third element, the legislation in each state provides a non-exhaustive list of considerations that will be taken into account by the Court in determining whether the publication was reasonable in the circumstances. These include:
- The seriousness of the imputations that are carried by the matter.
- The extent to which the publication distinguishes between suspicions, allegations, and proven facts.
- The nature of the environment.
- Whether it was appropriate, in the circumstances, for expeditious publication of the material.
- Any steps taken to verify the material published.
Circumstances in which a defence of qualified privilege is routinely relied upon
The most common circumstances in which a defence of qualified privilege is relied upon are those publications which are made in business environments, strata environments recreational club environments, or other small group environments. However, the defence is not limited to those specific occasions and can be used in a variety of defamation claims.
If the defendant is successful in proving that the publication was made on an occasion of qualified privilege, the defendant must prove that the publication was made with malice. Publications made with malice will defeat the defence of qualified privilege.
The issue of malice is a complex issue, in that it goes to the state of mind of the defendant at the time of publication. To establish malice, it is usually necessary to prove that the defendant made the publication for an improper purpose, or with knowledge of the falsity of the publication. Usually, a defendant will allege that the statement was, in fact, made in good faith and the plaintiff will need to prove that, despite evidence to the contrary, that was not the case.
If you are facing liability for a claim for defamation, a defence of qualified privilege may be a suitable option where a publication was made to those who had some specific interest in the subject matter.
If this is the case, contact Rostron Carlyle Rojas Lawyers today at (02) 9307 8900 or [email protected] to discuss your matter further.
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