Introduction
The law of defamation serves to protect personal reputation, but there are situations where the law recognizes that potentially defamatory statements should be protected for the broader public good. One such protection is the defence of qualified privilege, which provides immunity for certain communications made in specific contexts. As a defence, qualified privilege acknowledges that in some circumstances, freedom of communication outweighs the protection of reputation. This blog post explores the principles and application of common law qualified privilege in Australian defamation law, examining key cases that have shaped this important area.
The Conceptual Basis of Common Law Qualified Privilege
The foundation of common law qualified privilege was articulated in the landmark case of Adam v Ward [1917] AC 309. The House of Lords outlined that a privileged occasion arises where:
"the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."
This reciprocity requirement remains the cornerstone of qualified privilege. The defence acknowledges that there are situations where society benefits from the free exchange of information, even if that information might be defamatory. As noted in Toogood v Spyring (1834), the defence protects communications that are made "for the common convenience and welfare of society."
In essence, qualified privilege creates a rebuttable presumption against malice. Where an occasion of qualified privilege exists, the plaintiff must prove "malice in fact" to defeat the defence. Whether an occasion is privileged is a question of law for the judge to decide, assuming the facts are not in dispute.
Categories of Qualified Privilege
Over time, the courts have recognized several categories where qualified privilege may apply. These are not exhaustive but represent common situations where the defence has been successfully invoked.
Statements Made Under a Duty to a Person with an Interest
This category applies when the speaker has a duty to make the statement to someone who has either a duty to receive it or an interest in receiving it. In Beach v Freeson [1972] 1 QB 14, a member of Parliament wrote to the Law Society and the Lord Chancellor complaining about the conduct of two solicitors. The court held that the MP had a social or moral duty to communicate this information, particularly as he had received multiple complaints about the firm.
Interestingly, while the Law Society's interest in receiving such information was clear (as it had disciplinary powers), the court also found that the Lord Chancellor had a sufficient interest despite lacking direct disciplinary authority. This was because solicitors were officers of the court, and the Lord Chancellor was ultimately responsible for the machinery of justice.
Commercial contexts can also give rise to qualified privilege. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court held that the defence was available to a publisher of an occupational health and safety bulletin containing defamatory allegations. The court emphasized that what distinguished this publication from other paid publications was "the narrow focus of both its subject matter and its readership" which created the necessary reciprocity of duty or interest.
Statements in Public Functions or Election Campaigns
Another category includes statements made in carrying out public functions or participating in election campaigns. Debate within municipal councils on local affairs typically attracts qualified privilege, as does certain election campaign communications.
In Braddock v Bevins [1948] 1 KB 580, the Court of Appeal took a robust approach to qualified privilege regarding election addresses. The court found that statements in a candidate's election address concerning an opposing candidate were privileged, provided they were relevant to matters electors would consider in casting their votes. The court reasoned that:
"The task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel."
This approach was somewhat tempered in Australian jurisprudence by Lang v Willis (1934) 52 CLR 637, where Dixon J and Evatt J took the view that participation in an election campaign did not create a general occasion of qualified privilege and that defamatory statements made during a public address in such a campaign would normally not be entitled to that defence.
However, in Roberts v Bass (2002) 194 ALR 161, the High Court revisited this issue. Several judges concluded that qualified privilege should attach to:
"statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."
Protection of Family and Personal Relationships
The courts have also recognized that family and personal relationships might give rise to qualified privilege, though there is limited recent authority on this. In Watt v Longsdon [1930] 1 KB 130, Scrutton LJ acknowledged the difficulty in this area, noting:
"It is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case."
This area demonstrates the significant judicial discretion involved in determining qualified privilege, with courts needing to evaluate whether a moral or social duty exists based on the specific relationship and circumstances.
Statements for the Protection of One's Own Interests
A fourth category protects statements made by a person in furtherance of their own interest to someone who has a duty to receive the information or an interest in receiving it. This requires the same reciprocity element as other categories.
An example would be a shareholder in a company bringing alleged wrongdoing by directors to the attention of regulatory bodies or the Stock Exchange. The shareholder has an interest in addressing the misconduct, and the regulatory bodies have an interest or duty in receiving such information.
In Aktas v Westpac Banking Corporation Ltd (2010) 268 ALR 409, the High Court considered whether a bank's endorsement "Refer to Drawer" on dishonored cheques was privileged. A majority of the court found no reciprocity of interest between the bank and payees where the drawer had sufficient funds to meet the cheques, illustrating the nuanced analysis this category requires.
Responding to an Attack
A well-established category of qualified privilege protects statements made in response to an attack by the plaintiff. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, the High Court recognized that defamatory statements made in response to an original attack may be entitled to qualified privilege.
The extent of permitted response was addressed in Penton v Calwell (1945) 70 CLR 219, where Dixon J noted that:
"the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant."
However, the defence is not unlimited. The response must be proportionate, and as noted in Kennett v Farmer [1988] VR 991, a riposte to a retort (a response to a response) generally wouldn't be protected. The court reasoned that allowing an initial defamer a privileged right of reply to the victim's defence would "severely inhibit his own rights of self defence" and allow a defamer to benefit from their own tortious act.
Complaints About Public Officials
A person who claims to have been adversely affected by a public official's conduct will normally receive the protection of qualified privilege when bringing a complaint to the appropriate official body, assuming no express malice. Courts have shown considerable latitude in such cases.
In Mowlds v Fergusson (1940) 64 CLR 206, a senior police officer made a report containing defamatory material at his superiors' request. He showed the report to the former Commissioner of Police who had resigned. The High Court considered this publication was made on an occasion of qualified privilege, as the former commissioner might be called upon to confirm or refute the defendant's report and had a real moral concern in receiving information about his past administration.
Irrelevant Statements and Loss of Privilege
The protection of qualified privilege only extends to statements relevant to the occasion in question. As articulated in Adam v Ward [1917] AC 309:
"Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected."
The High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 framed the question as "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence."
When a communication contains both relevant and irrelevant defamatory content, qualified privilege only attaches to the relevant part. Moreover, the inclusion of irrelevant defamatory content may provide evidence of malice and potentially destroy the privilege of the relevant portions as well.
It's important to note that the violence of language used does not affect whether there is an occasion of qualified privilege or whether the communication is relevant to that occasion, though it may be evidence of malice.
Media and Qualified Privilege
The courts have consistently rejected any general duty on mass media publishers to communicate matters of public interest to their audience. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Latham CJ stated:
"There is, however, no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because a statement is made in the course of dealing with a matter of public interest."
Courts distinguish between matters in which the public might be "interested" in the sense of curiosity, and matters in which specific readers might have an "interest" due to their connection with the subject matter. As Higgins J noted in Howe v Lees (1910) 11 CLR 361, interest is used:
"in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."
The High Court in Lange v Australian Broadcasting Corp (1997) 189 CLR 520 observed that "only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." This decision extended qualified privilege to publications on government and political matters, but subject to the requirement that the publisher's conduct be reasonable—a more stringent test than the traditional qualified privilege defence.
Ancillary Privilege
An important extension of qualified privilege is the concept of "ancillary privilege," which protects technical publications to persons who don't have a legitimate interest in receiving the information but are involved in the process of communication. For example, a stenographer who types a letter of complaint that contains defamatory material would be protected by the same privilege that attaches to the sending of the letter to the appropriate body.
As Lord Diplock noted in Bryanston Finance Ltd v de Vries [1975] 1 QB 703, this is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents of the letter to its addressee."
Conclusion
Common law qualified privilege remains a vital defence in Australian defamation law, balancing the need to protect reputation with the importance of free communication in specific contexts. The defence's foundation rests on the reciprocal duties or interests between the publisher and recipient, with various categories developed through case law.
While qualified privilege offers significant protection in certain circumstances, it is not unlimited. The information must be relevant to the occasion, and the defence can be defeated by proof of malice. For media organizations, the traditional defence has limited application, though constitutional considerations have extended the protection for publications on government and political matters.
Understanding the principles and limitations of qualified privilege is essential for both those making potentially defamatory statements and those who believe their reputation has been harmed. As with many areas of defamation law, each case turns on its specific facts and requires careful analysis of the relationship between the parties and the context of the communication.