Defamation Defence - Privilege: Qualified Privilege Flashcards
What is qualified privilege?
“attaches to occasions when the law recognises a need for frank…communication which outweighs the need to protect reputation” (Craig v Williams)
How is qualified privilege different to absolute privilege?
Qualified privilege protects the defendant unless the plaintiff can show that he/she was either predominantly motivated by ill will OR took improper advantage of the occasion
(but in absolute privilege it doesn’t matter if the speaker was motivated by ill will)
What are some examples of Qualified privilege?
- Complaints about a colleague – they are sexual harasser, they steal etc
- When you think someone is in danger of someone
- A duty to warn someone
- Making a complaint to the police
How is qualified privilege justified?
Qualified privilege is for the public good
It is about publication which are “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned…If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.” Toogood v Spyring (1834)
Watt v Longsdon 1930 👨💼 💼👨💼 (English CA)
Facts: Longsdon (the defendant in London) in business with Watt & Browne (plaintiff in Casablanca). Watt is behaving badly, Browne tells Longsdon. Longsdon tells Sings (owner of company) and Mrs Watt. Watt sues Longsdon.
Watt v Longsdon 1930 👨💼 💼👨💼 identifies 3 situations where qualified privilege can apply, what are they?
1) The plaintiff has a duty to communicate information believed to be true to a person who has a material interest in receiving the information
2) The speaker has an interest which would be protected by communicating the information to a person whom he/she honestly believed had a duty to protect the interest – eg going to the police, teacher etc
3) The speaker and recipient had a common interest in and reciprocal duty in respect of the subject matter of the communication between them. eg – conversations between professor colleagues about whether a student has cheated in a test
What are the two aspects to the interest?
the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement
Some interest of the defendant’s which he/she is entitles to protect by making the statement (eg replying to an attack)
Who decides according to Watt 👨💼 💼👨💼 when will a legal, moral or social duty to communicate information to someone arise?
It is a matter for the judge and not easy for them to determine
When does someone have a duty to speak?
- Where a former employer sent a reference about the plaintiff
- Neighbour is hurting their children
- A person tells the police about fraudulent behaviour or criminal offences by particular individuals
- A consultant reports that a fishery company is causing food poisoning
Craig v William [2019] 💋😰
- Head of conservative party (Craig) accused of sexually harassing his press secretary. William tells others
- Craig sends a leaflet to 1.4 million households in NZ about the incident
- William counter sues, as Craig calls Williams a liar and engages in dirty politics (which is defamatory)
Craig uses the qualified privilege defence
Reply to Attack (a type of qualified privilege)
A person whose reputation has been the subject of a defamatory attack has qualified privilege in respect of anything properly said by way of response to that attack
Requirements for reply to attack
A person who is attacked publicly can reply publicly and make defamatory statements about the attacker, including impugning their credibility and motives
- Statements need to be fairly relevant for rebuttal of the attack and the extend of dissemination should not significantly exceed that of the original attack (proportional response)
- There is said to be a right to defend oneself but also a corresponding interest on the part of the audience to hear the response
When will the defence of qualified privilege fail according to section 19 of the Defamation Act 1992
If the defendant was:
predominantly motivated by ill will towards the plaintiff,
or
otherwise took improper advantage of the occasion of publication. (eg you don’t actually believe the information is true of your reply to attack)
NOT if they were motivated by malice
What does Horrocks v Lowe [1975] 😶🌫️ say about ill will or improper purpose within the qualified privilege defence?
Proving the defendant was motivated by ill will or improper purpose is the job of the plaintiff
It is sometimes enough to establish malice to show the defendant didn’t truly believe what they published was true
qualified privilege can still be defeated if it can be shown that the defendant misused the occasion for some purpose other than that for which the privilege is accorded in law.
MIXED MOTIVES are NOT enough
What does Horrocks v Lowe [1975] 😶🌫️ say about identifying ill will/improper purpose?
- “A plaintiff can, according to Horrocks, adduce evidence of the defendant’s conduct upon occasions other than that protected by the privilege to show what his dominant motive was.”
Failure to apologise is not enough on its own
- Ill will or an improper motive (despite belief in truth) might also be established if a person incorporates defamatory matter that is not really necessary
