NSW Court of Appeal clarifies the scope of qualified privilege

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The defence of qualified privilege protects the publication of defamatory statements published pursuant to a legal, moral or social duty, and in the absence of improper motive. The person making the defamatory communication and the recipient of it must have a common interest, or an interest in the subject matter to which the communication is relevant.
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The defence of qualified privilege protects the publication of defamatory statements published pursuant to a legal, moral or social duty, and in the absence of improper motive. The person making the defamatory communication and the recipient of it must have a common interest, or an interest in the subject matter to which the communication is relevant.

In Holmes à Court v Papaconstuntinos [2011] NSWCA 59, the NSW Court of Appeal considered whether a defence of qualified privilege is available when a defamatory publication is made voluntarily rather than responsively, and is not motivated by a "pressing need".

Justice McHugh and Bashford

In a dissenting judgment in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 Justice McHugh J said of the defence of qualified privilege:

"ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient."

His Honour also thought that if there is no pressing need for the publication of defamatory material, for example, where there is no immediate danger of harm to person or property, "the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege."

In Holmes à Court, the appellant wrote a letter to the respondent's employer containing what the trial judge, Justice McCallum, found to be defamatory imputations about the respondent. Justice McCallum also held that the defamatory statement was volunteered and without any "pressing need" for it to be made.

Her Honour observed that McHugh J's dissenting judgment in Bashford had been cited with approval by the Court of Appeal in recent times and, endorsing McHugh J's judgment, ruled that the appellant's letter did not attract the qualified privilege defence.

Court of Appeal

On appeal, Justice McColl acknowledged McHugh J's reputation as an expert in defamation law and accepted that dissenting judgments can occasionally "take on a life of their own", particularly when the author of the dissenting opinion is a renowned expert in the relevant area of law.

However, the Court of Appeal ultimately observed that the majority in Bashford did not endorse McHugh J's views and that they did not reflect Australian law on the issue.

The Court of Appeal clarified that "pressing need" is not an additional precondition to qualified privilege where the publisher has an interest, even if the publication is voluntary. Rather, a pressing need might indicate an underlying social obligation to publish in the absence of a duty or interest.

Justice Allsop stated:

"... whether a social duty arises in the circumstances where no pre-existing duty or interest exists will be analysed by reference to all the circumstances. To such an analysis the voluntariness of the statement may be relevant, as it may be in the assessment as to whether the statement was fairly warranted by the occasion."

Implications

The decision in Holmes à Court makes it clear that "pressing need" is not required for a defence of qualified privilege to succeed when a defamatory statement is made voluntarily.

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NSW Court of Appeal clarifies the scope of qualified privilege

Australia Privacy

Contributor

At K&L Gates, we foster an inclusive and collaborative environment across our fully integrated global platform that enables us to diligently combine the knowledge and expertise of our lawyers and policy professionals to create teams that provide exceptional client solutions. With offices spanning across five continents, we represent leading global corporations in every major industry, capital markets participants, and ambitious middle-market and emerging growth companies. Our lawyers also serve public sector entities, educational institutions, philanthropic organizations, and individuals. We are leaders in legal issues related to industries critical to the economies of both the developed and developing worlds—including technology, manufacturing, financial services, health care, energy, and more.
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