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  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.
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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.