Australia: Getting your own back: how far can you go in responding to a public attack?

Last Updated: 14 October 2012
Article by Gail Noe

Key Points:

Where a party's conduct or reputation is publicly attacked, the common law defence of qualified privilege allows it to respond publicly to vindicate its conduct or rehabilitate its reputation.

Reply to attack is one particular category of the common law defence of qualified privilege. It is a rare example of the law permitting defamatory statements to be made as a form of self-redress. It allows the party attacked (whether an individual or a corporation) to place its case before the body whose judgment the attacking party has sought to affect, so as to prevent the attack operating to its prejudice. Thus, if the attack is made through the press, the press may be used in answer and the response can lawfully be vigorous.

While the law gives a defendant great latitude to launch counter-attacks, the privilege is not absolute, as illustrated by the High Court's decision last week in Harbour Radio Pty Limited v Trad [2012] HCA 44.

The claims and counter-claims over the Cronulla riots

About a week after the Cronulla riots, Keysar Trad, a spokesman for the Muslim community, addressed around 5,000 people (including representatives of the media) at a peace rally in Hyde Park, Sydney. Mr Trad referred to "racist rednecks in tabloid journalism" and used words which placed at least part of the blame for the riots on 2GB.

The next day, a 2GB employee, Jason Morrison, broadcast statements on 2GB which were found to convey imputations which were defamatory of Mr Trad, namely that he:

(a) stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;

(b) incites people to commit acts of violence;

(c) incites people to have racist attitudes;

(d) is a dangerous individual;

(g) is a disgraceful individual;

(h) is widely perceived as a pest;

(j) deliberately gives out misinformation about the Islamic community; and

(k) attacks those people who once gave him a privileged position.

The High Court found that all but two of these statements, namely (h) and (k), were defensible on the grounds of qualified privilege – that is, 2GB was responding to an attack made on it. The proceedings have been remitted to the Court of Appeal to consider other issues including whether 2GB can make out a defence of truth in relation to the defamatory comments which were not protected by qualified privilege.

So what are the limits to a defence based on reply to attack?

First, in order for qualified privilege to apply, there must be reciprocity of duty and interest between the publisher and the audience. In this case, the necessary reciprocity had to be found between 2GB and the listeners, not between 2GB and Mr Trad.

Generally, a public attack is regarded as creating an interest in responding to a like audience, and the public is regarded as having an interest in hearing that response. In this case, the fact that Mr Trad made a serious attack upon 2GB and one of its commentators, meant that 2GB had an interest in vindicating its reputation. As Mr Trad's attack was made to the public at large (ie. to the persons present at the peace rally and to other persons through the media who were also present), 2GB was entitled to respond to the public.

Qualified privilege may be defeated if the limits of the duty are exceeded

Qualified privilege may be defeated if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, or was irrelevant to them.

The reply will be sufficiently connected to the privileged occasion to attract the defence if it is sufficiently connected with the content of the attack, or goes to the credibility of the attack or to the credibility of the person making that attack.

Vigorous language may be used in reply to an attack, but it must also be fair. In the words of the High Court in this case, the law does not "encourage persuasion by public vilification and by an abdication of reason.”

Thus, the High Court held that qualified privilege applied to imputations (a), (b) and (c) on the basis that it was a “relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him to have concern about his personal safety."

Imputation (j) was protected because, in identifying Mr Trad as one who himself deliberately gives out misinformation about the Islamic community, it also sought to undermine his credibility in complaining at the peace rally of the mistreatment of the community by 2GB.

Imputations (d) and (g) were also protected on the basis that the misinformation was said to be of such a degree of seriousness as to render Mr Trad a dangerous person, thus further undermining his credibility, and it was disgraceful for Mr Trad at the peace rally to purport to represent the Islamic community in his attack upon 2GB when he had been marginalised by that community.

Imputation (h) however was not a relevant response (because being a “pest” did not reflect on Mr Trad’s credibility in making the attack against 2GB), and imputation (k) was not a retort by way of vindication which was fairly warranted by the occasion. Therefore (k) and (h) both exceeded the occasion of the privilege and were not protected by qualified privilege.

Actual or express malice will also defeat qualified privilege

Qualified privilege may also be defeated if the defendant's dominant motive for publishing is actual or express malice. Malice is proved by showing that the defendant was actuated by an improper motive, one foreign to the occasion. Malice is not easily proved but, if the defendant knew the statement was untrue when it was made or was recklessly indifferent to its truth or falsity to the point of willful blindness, that is usually conclusive evidence of malice.

Mr Trad's case on malice, on which he bore the onus of proof, was that 2GB and its agent, Mr Morrison:

  • had taken no steps to verify that 2GB's reporter at the rally feared for his safety because of the conduct of Mr Trad before attacking Mr Trad; and
  • had accordingly done so either knowing that assertion to be false or with reckless indifference to the truth or falsity of his attack.

Mr Trad's problem was that he was not able to show how Mr Morrison came to form the incorrect views which he expressed as to the situation in which the 2GB reporter at the peace rally found himself, nor what steps Mr Morrison may have taken to clarify the situation. As a result, the Court of Appeal concluded that there was insufficient evidence to demonstrate that Mr Morrison knew what he said to be false or made his statements with reckless indifference to the truth or falsity of his attack. The High Court did not disturb this finding.

What you can and can't do

In short, if your conduct or reputation is attacked publicly, you can respond to the attack in the same place as it was made, using vigorous language, providing your response is reasonably appropriate and relevant and malice is not your dominant motive in responding to the attack. Obviously this inevitably involves questions of degree, so any response should be carefully considered, not made in the heat of the moment.

You might also be interested in ...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.