Focus: Defending defamation – qualified privilege
26 October 2012
In brief: The High Court of Australia has found that a defamatory publication, which alleged racism and incitement of hatred, was protected by the common law defence of qualified privilege because it was made in response to a public attack. Partner Miriam Stiel (view CV), Senior Associates Stacey Hahn and Tom Randall and Law Graduate Amanda Richman report.
How does it affect you?
- Where a serious public attack has been made on a person, they are entitled to publicly respond.
- To attract the protection of qualified privilege, the response must be relevant to the attack and must not be malicious.
- The response will be relevant to the attack if it is sufficiently connected to the content of the attack, the credibility of the attack, or the credibility of the person making the attack.
- The onus is on the person bringing the defamation claim to establish malice. It will be very difficult to attribute malice to the defendant's response without evidence directly demonstrating the defendant's state of mind at the time that the publication was made.
In Harbour Radio Pty Limited v Keysar Trad,1 the High Court upheld the common law defence of qualified privilege to protect a Radio 2GB host's defamatory statements. The statements were made in response to a verbal attack on the station's reputation that Mr Keysar Trad had made publicly, following the Cronulla riots in late 2005.
On 18 December 2005, about a week after the Cronulla riots, Mr Trad spoke at a 'peace rally' in Hyde Park. The rally was attended by about 5000 people and representatives of the media were present. In the course of his speech, Mr Trad referred to 'those racist rednecks in tabloid journalism', and said that commercial radio station 2GB had been 'the mouthpiece of the Howard government', and had been 'whipping up fears'. Mr Trad also accused 2GB of causing suffering to the Muslim community in Australia by its racist actions. A 2GB reporter was present when Mr Trad made the speech.
In response to Mr Trad's statements, 2GB radio host Mr Jason Morrison spoke on air the next morning about the peace rally and Mr Trad. Mr Trad brought defamation proceedings, under the Defamation Act 1974 (NSW), against 2GB in relation to Mr Morrison's statements. At trial, the jury found that Mr Morrison's monologue conveyed the following defamatory imputations about Mr Trad:
- (a) he stirred up hatred against a 2GB reporter, which caused the reporter to have concerns about his own personal safety;
- (b) he incites people to commit acts of violence;
- (c) he incites people to have racist attitudes;
- (d) he is a dangerous individual;
- (g) he is a disgraceful individual;
- (h) he is widely perceived as a pest;
- (j) he deliberately gives out misinformation about the Islamic community; and
- (k) he attacks those people who once gave him a privileged position.
Radio 2GB relied, among other defences, on that of qualified privilege. At trial, the judge upheld the defence of qualified privilege for all the imputations. However, the Court of Appeal held that the defence of qualified privilege should not have applied to imputations (c), (h) and (k). Radio 2GB appealed to the High Court, seeking to restore the primary judge's holding on qualified privilege. Mr Trad sought to have the defence of qualified privilege rejected for the remaining five imputations.
The majority of the High Court held that the common law defence of qualified privilege applied to six of the eight imputations. The judgment provides, however, that there are two limits on the common law defence of qualified privilege:
- the response must not go beyond the occasion; and
- it must not be malicious.
The response must not go beyond the occasion
To establish the defence of qualified privilege, a defendant must show that the publication was made in the discharge of some public or private duty, whether legal or moral. It was therefore necessary for the court to consider what duties or interests were engaged between 2GB as publisher and the listeners to whom the broadcast was made. The court held that the law recognises 2GB's interest in publishing defamatory matter to the general public, which has an interest in hearing its response to the public criticisms that Mr Trad had made.
This inherently limits the defence: the response must not go beyond the occasion that gave rise to the interest. This requires that the response:
- be commensurate with the initial attack;
- be relevant to the attack; and
- cannot be made in order to serve some purpose other than the purposes warranted by the occasion.
The majority also said that a response will be sufficiently connected to the occasion where it is sufficiently connected to:
- the content of the attack;
- the credibility of the attack; or
- the credibility of the person making the attack.
Imputations (a), (b), (c), (d), (g) and (j) were found to go to Mr Trad's credibility, and were therefore covered by the privilege (provided there was no malice involved).
- imputation (k) was not relevant to the attack on 2GB. The imputation that Mr Trad criticised the media despite the fact that he rose to prominence by use of the facilities provided by the media was not fairly warranted by the occasion; and
- imputation (h) was, similarly, not relevant to the initial attack. The imputation that Mr Trad was a pest, by itself, in no way reflected on Mr Trad's credibility in making the charges against 2GB.
Accordingly, these imputations were not protected by the defence of qualified privilege.
The response must not be malicious
This case demonstrates how difficult it can be for a plaintiff to establish malice. It may be established where:
- the defendant used excessive terms in their response; or
- the defendant knew that a statement was untrue at the time of its making or was reckless to its truth.
Although, prior to making the statements, Mr Morrison had viewed footage showing that one of the imputations was untrue, the Court of Appeal was not satisfied that Mr Morrison knew that what he said was false, or that he made his statements with reckless indifference to the truth. The majority of the High Court considered that it was unlikely it could be shown that the Court of Appeal erred in this respect and so denied Mr Trad leave to file a notice of cross-appeal on this ground.
The High Court has given the common law defence of qualified privilege, in the context of responses to public attacks, a seemingly broad application. Any statement that is connected to the content of the attack, the credibility of the attack, or in some way undermines the credibility of the person making the attack, appears to attract the defence.
To overcome the defence by proof of malice, the plaintiff must establish that the defendant was knowingly or recklessly making untrue statements, or that the excessiveness of the response is demonstrative of malice. However, without direct evidence demonstrating the defendant's state of mind, this will be very difficult to establish.
-  HCA 44.
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