Malice in defamation: what it means and which defences it defeats

Most defamation defences work regardless of what the publisher was thinking. Truth is a defence whether the publisher knew it was true or merely happened to be correct. Absolute privilege protects a witness in court even if the evidence was given out of spite. Qualified privilege is different: it is a conditional protection, and the condition is that the publisher used the occasion for its proper purpose. Malice is the name for the failure of that condition.

The word causes confusion because in ordinary speech it means spite or hostility. In defamation law it has a narrower, technical meaning, and proving it is harder than plaintiffs often expect. This article explains what malice is, how it is proved, which defences it defeats, how it relates to the honesty requirements in other defences, and what part, if any, it plays in damages.

What malice means

The authoritative statement is the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass. An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is express malice.¹ The improper purpose must not only exist; it must be the dominant reason for the publication.¹

The High Court was careful to separate malice from the states of mind that are often confused with it. Ill will, knowledge of falsity, recklessness, lack of belief in the statement, bias and prejudice are not malice. If one of them is proved, it usually provides a basis for inferring that the defendant was actuated by an improper motive, but the plaintiff must also show that the state of mind existed on the occasion and actuated the publication.¹

The context of Roberts v Bass illustrates the point. Election material attacking a sitting member’s travel record was found to be false and defamatory, and the trial judge found malice because the publishers wanted to damage the candidate politically. The High Court held that intentionally causing political damage to a candidate is not an improper motive where the occasion is communication between electors about a candidate’s record, and that the vigour of the attack is not, without more, evidence of improper purpose.¹ The purpose of the occasion was to inform electors about the candidate; the publishers were doing exactly that, however unfairly.

The same approach was applied in Cush v Dillon. A board member told the chair that an affair between the general manager and another board member was “common knowledge”. The trial judge found malice because she did not believe the statement to be true. The High Court held that this was the wrong question. Lack of belief in the truth of a statement, or even ill will towards the person defamed, will not be sufficient; there must be evidence that the making of the statement was actuated by improper motive.²

How malice is proved

Honesty is presumed, so the plaintiff carries the onus of negativing it.¹ The evidence that tends to establish malice falls into a few categories.

Knowledge of falsity is the strongest. In Roberts v Bass the Court said that if the defendant knew the statement was untrue when making it, that is almost invariably conclusive evidence of malice, because a person who knowingly publishes false and defamatory material almost certainly has some improper motive, even if the plaintiff cannot identify what it was.¹ The one exception is where the defendant was under a legal duty to publish.¹

Recklessness is more limited. Recklessness so gross that it amounts to wilful blindness, where the defendant deliberately refrains from inquiry for fear of learning the truth, is treated as equivalent to knowledge.¹ Recklessness short of that is not enough on its own; it must be accompanied by some other state of mind, such as anger or unreasoning prejudice, of which the recklessness is evidence.¹

Ill will or a pre existing hostile relationship is relevant but rarely sufficient alone, because people with grievances often have genuine reasons to speak on a privileged occasion. The question is whether the hostility, rather than the duty or interest, drove the publication. In Hockey v Fairfax Media Publications Pty Ltd, White J found that the editor of The Sydney Morning Herald had been predominantly actuated by a desire to get back at the Treasurer following a dispute over earlier coverage, and that had the printed articles been defamatory, qualified privilege would have been defeated by that improper motive.³ The same finding carried across to a poster devised by a different employee who had no improper purpose himself, because the poster gave further expression to the editor’s purpose.³ By contrast, no malice was found against The Age or The Canberra Times, which published related material without that history.³

Other recognised indicators include language disproportionately strong for the occasion, publication to people with no legitimate interest, and a refusal to retract after learning the truth, although the High Court has stressed that mere failure to make inquiries, to apologise or to correct an untruth when discovered is not itself evidence of malice.¹

What does not prove malice is equally important. Carelessness of expression or carelessness in making the statement never provides a ground for inferring malice, because the law requires the occasion to be used honestly, not carefully.¹ Irrationality, stupidity or a refusal to face facts is not conclusive proof of malice, although in an extreme case it may be evidence of it.¹ And if the tribunal of fact rejects the defendant’s evidence of a positive belief in truth, it does not follow that the plaintiff has proved the absence of belief or an improper motive. Rejecting the defendant’s evidence of belief does not, by itself, prove that the belief was absent.¹

Pleading malice

Because malice is an answer to a defence, the plaintiff raises it in a reply, and the usual rules of pleading require the facts, matters and circumstances relied on to be particularised. Courts will strike out particulars that merely assert hostility or falsity without identifying how they bear on the defendant’s purpose on the occasion. A reply alleging malice must identify what the defendant knew, what the defendant said or did that reveals the improper purpose, and why that purpose, rather than the protected one, drove the publication.

Which defences malice defeats

The uniform defamation legislation does not define malice. Section 24(2) of the Defamation Act 2005 (NSW) provides that where a defence may be defeated by proof that the publication was actuated by malice, the general law applies to determine whether the publication was so actuated.⁴ The common law in Roberts v Bass therefore governs the statutory defences as well.

Common law qualified privilege is defeated by malice.¹ So is the extended Lange privilege for government and political matter, although in that context the High Court described the relevant improper purpose as publication for some purpose other than communicating government or political information.⁵

Statutory qualified privilege under s 30 is defeated if the plaintiff proves the publication was actuated by malice.⁶ Because s 30 already requires the defendant’s conduct to be reasonable, the two issues are often argued together, but they are distinct: a publisher can act unreasonably without malice, and an honest but careless publisher is not malicious.

The defences of justification, contextual truth and absolute privilege cannot be defeated by malice. Truth is a complete answer however motivated, and absolute privilege protects statements in parliament, court and the other listed occasions regardless of purpose. Since the Stage 2 reforms in most jurisdictions, that includes a complaint made to police in the course of the officer’s duties.⁷

Honesty tests in other defences

Several statutory defences cannot be defeated by malice in the Roberts v Bass sense but have their own honesty requirements. These honesty requirements are sometimes loosely described as malice, although they are distinct from it.

Honest opinion under s 31 is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant at the time of publication. Where the opinion was that of an employee or agent, the defence is defeated if the defendant did not believe the opinion was honestly held, and where it was that of a third party commentator, if the defendant had reasonable grounds to believe it was not honestly held.⁸ The test is about belief, not purpose; a commentator who honestly holds an opinion can express it out of dislike and still be protected.

The defences for publication of public documents and fair reports of proceedings of public concern are each defeated only if the plaintiff proves that the matter was not published honestly for the information of the public or the advancement of education.⁹ The peer reviewed scientific or academic matter defence introduced in 2021 uses the same formula.¹⁰ These tests look at the purpose of publication, but they are tied to the particular public purposes the defences serve rather than to the open ended duty and interest analysis of qualified privilege.

The new defence for digital intermediaries in s 31A can be defeated only if the plaintiff proves that the intermediary was actuated by malice in establishing or providing the online service through which the matter was published; malice relating to the particular post complained of is not enough.¹¹

Malice and damages

A common misconception is that proof of malice increases the damages. The uniform defamation legislation points the other way. Section 36 provides that in awarding damages the court is to disregard the malice or other state of mind of the defendant at the time of publication or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.¹² Section 37 prohibits exemplary or punitive damages altogether, so a defendant cannot be ordered to pay more simply to punish bad motives.¹³

Malice can still matter in two ways. First, where the defendant’s state of mind increases the hurt to the plaintiff, for example because the plaintiff learns that the publisher knew the allegation was false, that aggravation of the harm is compensable. Second, aggravated damages are available where the defendant’s conduct towards the plaintiff, before or during the proceedings, was lacking in bona fides, improper or unjustifiable and thereby increased the injury.¹⁴ An award of aggravated damages is made separately from damages for non economic loss (compensation for hurt to feelings and reputation, often called general damages) and is not subject to the statutory cap.¹⁵ The Full Court of the Federal Court confirmed in Latham v Greenwich that aggravated damages sit outside the cap under the 2021 wording of s 35.¹⁶

Conduct of the defence can itself be aggravating. Persisting in an unsustainable plea of truth, repeating the libel in the pleadings, or cross examining the plaintiff in an improper way are familiar examples, but the conduct must be unjustifiable rather than merely vigorous. Running a defence that fails is not, without more, aggravating.

Differences between jurisdictions

The law of malice is common law and does not vary between jurisdictions. The statutory provisions referred to above are numbered differently in some places.¹⁷

Victoria, Queensland and Tasmania use the NSW numbering. Western Australia retains the pre 2021 wording of s 30, which includes the longer list of reasonableness factors, but its malice provision in s 30(4) and its damages provision in s 36 are in the same terms as the original uniform Act.¹⁸

Getting advice

Malice is pleaded far more often than it is proved, and an unsupported allegation can increase costs and damage credibility for whichever side makes it. Anyone considering alleging malice, or defending a privileged publication against such an allegation, should have the available evidence of the publisher’s purpose assessed before the pleadings are settled.