Qualified privilege: statutory and common law

Qualified privilege is the defence that allows people to speak frankly in situations where society needs them to: a reference for a former employee, a complaint to the police, a report to a board, a warning to a regulator. The statement may turn out to be wrong and seriously damaging, yet the publisher is protected unless the person defamed can show the occasion was abused.

The defence exists in two forms in Australia. The common law form turns on the relationship between the publisher and the audience. The statutory form, in s 30 of the uniform defamation legislation, turns on whether the publisher behaved reasonably. This article explains both, the extended category for government and political matter recognised in Lange, the 2021 changes to s 30, and the concept of malice that defeats each of them.

Two defences, not one

The uniform defamation legislation preserves the general law defences alongside the statutory ones. Section 24 of the Defamation Act 2005 (NSW) provides that a statutory defence is additional to any defence available apart from the Act, including under the general law, and that where a defence may be defeated by malice, the general law determines whether the publication was actuated by malice.¹

A defendant can plead common law qualified privilege, statutory qualified privilege under s 30, or both. They have different elements and the plaintiff’s answer to each is different, so it is common for defendants to run both in parallel.

Common law qualified privilege: duty and interest

The common law defence depends on the occasion of publication rather than the content. The classic formulation, adopted by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd, is that a communication is protected if it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of the person’s own affairs where the person’s interest is concerned, and the recipient has a corresponding interest or duty in receiving it.² The High Court put it shortly: reciprocity of duty or interest is essential.²

Familiar examples include a complaint to the police or a regulator about someone’s conduct, an employment reference given to a prospective employer, a report by an employee to a manager about a colleague, communications between members of an organisation about its affairs, and a proportionate reply to a public attack. In each case the publisher has a reason to speak and the recipient has a reason to listen.

In Papaconstuntinos v Holmes à Court the High Court rejected an attempt to narrow the defence. The majority held that where a defendant has a legitimate interest to protect in making the statement, the occasion arises, and there is no further requirement that the defendant show a pressing need or urgency to justify speaking.³ The Court also confirmed that “community of interest” may be a better description than reciprocity, because the interests of the publisher and recipient need not correspond exactly, provided each has an interest in the subject of the communication.³

Bashford itself illustrates that a commercial publisher can rely on the defence. A subscription newsletter on occupational health and safety wrongly reported that a consultant had personally been found liable by a court. The majority held that because the subscribers were only those responsible for workplace safety, and the bulletin dealt only with that subject, the reciprocity of duty or interest existed, and the fact that the publisher charged for the bulletin made no difference.²

The statement does not have to be true to attract the privilege. In Cush v Dillon a board member told the chair that it was “common knowledge” that the general manager and another board member were having an affair. The High Court held that the communication of the fact of an affair was no less relevant to the occasion than communication of a rumour, and that the error in the statement did not deny the privilege.⁴ Whether the speaker believed what she said was a question for malice, not for whether the occasion existed.⁴

A recent Queensland example is Karageozis v Sherman. A woman complained orally to a police officer that a former partner had kept contacting her, caused her to lose her job and threatened to contact her university. The Court of Appeal held that the trial judge was wrong to find no reciprocal duty and interest between a complainant and the police, that such an occasion may exist even where the behaviour reported is not criminal, and that the evidence did not support a finding of malice.⁵

Excess of privilege

The protection extends only to what is relevant to the occasion. The High Court in Cush v Dillon described the question as whether the defendant published something “beyond what was germane and reasonably appropriate to the occasion”, while cautioning that no narrow view should be taken of what pursuing the duty or interest reasonably involves.⁴

The same idea limits the audience. A complaint about a tradesperson made to the licensing body is one thing; the same complaint posted to a community Facebook group of several thousand members is another. Where a publisher goes beyond the people who share the relevant interest, the common law defence usually fails for that wider audience. That is why, as the NSW Court of Appeal observed in Bailey v WIN Television NSW Pty Ltd, the common law defence has rarely been available to mass media publications.⁶

The Lange extended privilege

In Lange v Australian Broadcasting Corporation the High Court held that the common law of qualified privilege had to conform to the constitutional freedom of communication on government and political matters. The Court reasoned that each member of the Australian community has an interest, sufficient for the purposes of the defence, in disseminating and receiving information, opinions and arguments about government and political matters, so that publication to the general public on those subjects can be an occasion of qualified privilege.⁷

The trade off for that wide audience is a reasonableness requirement. A publisher relying on the extended category must show that its conduct was reasonable, which as a general rule means that it had reasonable grounds for believing the imputation was true, took proper steps to verify the material, did not believe the imputation to be untrue, and sought a response from the person defamed and published it, unless that was impracticable or unnecessary.⁷ The privilege is defeated if the publication was actuated by malice, which in this context means a purpose other than communicating government or political information.⁷

In practice the Lange category is pleaded by media defendants but seldom succeeds, because the reasonableness standard is demanding. The Lange category’s most frequent practical use is in disputes about candidates and public office holders, where the High Court in Roberts v Bass confirmed that traditional qualified privilege also protects communications by electors to electors about a candidate’s record.⁸

Statutory qualified privilege under s 30

Section 30 of the Defamation Act 2005 (NSW) creates a defence where the defendant proves three things: the recipient had an interest or apparent interest in having information on some subject; the matter was published to the recipient in the course of giving information on that subject; and the defendant’s conduct in publishing the matter was reasonable in the circumstances.⁹

Two features make the statutory version wider than the common law. First, an “apparent interest” is enough, which exists where the defendant believed on reasonable grounds at the time that the recipient had the interest.⁹ Second, since the 2021 amendments s 30(3B) states expressly that it is not necessary to prove that the matter concerned an issue of public interest.⁹ The defence is also not defeated merely because the matter was published for reward.⁹

The price of that width is the reasonableness element. Section 30(3), as amended in 2021, lists factors the court may take into account to the extent it considers them applicable:

• the seriousness of any defamatory imputation carried by the matter;
• the extent to which the matter distinguishes between suspicions, allegations and proven facts;
• the nature of the business environment in which the defendant operates;
• whether it was appropriate in the circumstances for the matter to be published expeditiously; and
• any other steps taken to verify the information.⁹

Section 30(3A) adds that the court is not required to consider each factor and is not limited to them.⁹ Where there is a jury, s 30(6) makes the jury rather than the judge decide whether the defence is established.⁹

Before 2021 the list was longer. It included the extent to which the matter was of public interest, whether it related to the person’s public functions, the sources of the information and their integrity, and whether the matter contained the substance of the person’s side of the story or a reasonable attempt was made to obtain and publish a response.¹⁰ Those factors were moved into the new public interest defence in s 29A, and the shorter list in s 30(3) was meant to signal that s 30 is not primarily a media defence. The old list still applies in Western Australia, which has not adopted the 2021 amendments.¹⁰

Why s 30 is hard for mass media and useful for limited publications

The statutory defence has a long history under the predecessor provision, s 22 of the Defamation Act 1974 (NSW). In Bailey the Court of Appeal noted that courts should not too readily use the provision to excuse careless or irresponsible journalism, and that, although the common law’s reluctance to extend the defence to mass media publications has not been fully carried into the statute, mass media publishers have nonetheless struggled to rely on it.⁶

Lehrmann v Network Ten Pty Ltd shows why. Applying the pre 2021 version of s 30 to a February 2021 broadcast, Lee J adopted the established principles: the more serious the imputation, the more onerous the publisher’s obligation to act reasonably; the publisher generally must show proper inquiries, checks on sources and conclusions that follow fairly from the information; and the person defamed must be given an opportunity to respond.¹¹ He found that Network Ten accepted central allegations without adequate independent scrutiny, failed to investigate problems with key evidence and made inadequate efforts to contact the applicant, so that its conduct was not reasonable despite the high public interest in the subject.¹¹

Bailey shows the other side. A regional television station reported, on the day a council voted to sack its general manager, that there had been allegations of bullying and intimidation against him. The journalist had gathered information for months from credible sources, the item was plainly newsworthy and time critical, and he had tried to reach the general manager, who declined to engage. The Court of Appeal held that there was little more the broadcaster could have done and that the s 30 defence was established.⁶

For a business or individual publishing to a small, interested audience, reasonableness is usually a much lower hurdle than it is for a mass media publisher. A report of suspected misconduct made promptly to the people responsible for dealing with it, framed as an allegation rather than a finding, based on what the publisher actually saw or was told, will often satisfy both the common law and the statute. The same report broadcast to customers or the public would not.

Malice

Both forms of qualified privilege are defeated if the plaintiff proves the publication was actuated by malice. Section 30(4) says so expressly for the statutory defence, and s 24(2) applies the general law test.⁹

The general law test comes from Roberts v Bass. Malice means using the occasion for a purpose or motive foreign to the duty or interest that protects it, and the improper purpose must be the dominant reason for the publication.⁸ Knowledge that the statement was false is almost always conclusive evidence of malice, because a person who knowingly publishes false material almost certainly has an improper motive.⁸ But ill will, prejudice, recklessness or lack of belief in the truth are not malice in themselves; the plaintiff must show that such a state of mind existed on the occasion and actuated the publication.⁸ Carelessness is never enough.⁸

The onus rests on the plaintiff. Honesty is presumed and the plaintiff must negative it.⁸ Pleadings must particularise the facts said to show malice, and courts regularly strike out bare allegations. The topic is covered in more depth in the companion article on malice.

Differences between jurisdictions

The common law defence, including the Lange extended category, applies in every state and territory. The statutory defence exists everywhere but is located and worded differently:

Because the choice of law rule in s 11 applies the law of the place with which the harm has its closest connection, a WA publisher whose material was read mainly in another state may find the amended version of s 30 applied, and a publisher elsewhere whose material was read mainly in WA may find the unamended version applied.

Getting advice

Whether qualified privilege is available depends on who received the publication, why it was sent and how carefully it was prepared, and the answer can change from one recipient to the next. Early advice on the audience and the evidence of what the publisher knew is usually more valuable than advice after the pleadings have closed.