The question of whether a defamatory statement is made on an
occasion of qualified privilege is one of the more controversial
issues to arise in defamation cases. It has been the subject of a
number of cases in the States' Supreme Courts and the High
Court in recent years.
While the qualified privilege defence can be described in
abstract terms, it is often difficult to apply the principles to
specific facts. Crucial to the success of the defence is the
defendant's ability to demonstrate a reciprocity of interest
with those who received the offending material. The question of
whether some recipients' interest in the offending material is
sufficient is often a matter of degree and it is often difficult to
determine where, in the particular circumstances of any given fact
situation, to draw the line.
In Cantwell v Sinclair  NSWSC 1244, Justice
Rothman considered this issue in the context of an email sent by
the defendant to a large number of individuals with varying degrees
of connection with the subject matter of the publication.
The defendant was a member and the president and coach of a
dragon boat racing club. The plaintiff was an employee of the New
South Wales administrative body for dragon boat racing and a
volunteer official with the Australian Dragon Boat Federation.
The defendant published throughout Australia a series of emails
referring, in part, to the plaintiff and containing certain
allegations about the plaintiff and her involvement in officiating
dragon boat racing.
The recipients of the emails included (broadly speaking):
individuals involved with the governing bodies of dragon boat
racing in New South Wales, Australia and overseas
people involved in dragon boat racing but who were not involved
in the official or administrative aspects of the sport.
The plaintiff alleged that the e-mails carried imputations
defamatory of her including that she had spitefully used her best
efforts to prevent the defendant from being promoted up a grade as
an official of the International Dragon Boat Federation.
The defendant relied on the defence of qualified privilege on
the basis that:
"as a member of the dragon boat racing community... [he]
had a duty and interest to communicate with other members of the
community who had a reciprocal duty and interest in receiving such
Justice Rothman agreed with the defendant that he had an
interest in protecting his position as an official within the
dragon boat racing community. His Honour also accepted that the
committee of the New South Wales, Australian and International
governing bodies for the sport had a corresponding interest and/or
duty to receive the information.
However, his Honour did not accept that anyone beyond people in
these classes had an interest in receiving the information. His
"Other than the bare interests associated with some form of
connection to or participation in dragon boat racing, [the
defendant] could not have been aware of the interests of the
persons to whom his emails were sent to receive the information in
Interestingly, his Honour placed some importance on the fact
that the defendant chose the recipients of his emails including
those recipients who were not members of the governing bodies. It
is possible that his Honour might have found that a qualified
privilege defence was available if the publication was not intended
for or directed at individuals not involved in the governing
Often "broadcast" emails are sent without any
consideration of the particular interest that all of the recipients
have in the subject matter. The defence of qualified privilege will
not be available unless the defendant can demonstrate some real
interest on the part of the recipient in receiving the defamatory
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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