Proposal 10–4 The new Act should provide for a defence of qualified privilege to the publication of private information where the defendant published matter to a person (the recipient) in circumstances where:
(a) the defendant had an interest or duty (whether legal, social or moral) to provide information on a subject to the recipient; and
(b) the recipient had a corresponding interest or duty in having information on that subject; and
(c) the matter was published to the recipient in the course of giving to the recipient information on that subject.
The defence of qualified privilege should be defeated if the plaintiff proves that the conduct of the defendant was actuated by malice.
Question 10–1 Should the new Act instead provide that the defence of qualified privilege is co-extensive to the defence of qualified privilege to defamation at common law?
10.40 The ALRC is particularly interested in comments from stakeholders and legal practitioners as to the need for and practicability of a defence of qualified privilege for the publication of private information and the content of the defence.
10.41 This proposal is modelled on the proposal of the NSWLRC.
10.42 There are three ways in which qualified privilege operates as a defence in defamation law. First, there is the defence at common law which operates on occasions of qualified privilege.
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. (footnotes omitted)
10.43 The duty which the common law protects may be a legal, social or moral duty. The reciprocity of interest or duty is essential, thus the common law defence tends to apply only to publications that are limited in extent to individuals or groups with a particular common interest. Matters which the court will consider in deciding whether the occasion was one of qualified privilege include ‘the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication’.
10.44 The fact that a matter was one of public interest does not of itself attract qualified privilege. The common law defence is therefore of little utility to the media because of the usually wide extent of publication, except in very limited circumstances such as the publication of a reply to an attack or the correction of previously published information. It does however provide important protections for statements made without malice on limited occasions.
10.45 Secondly, there is the defence of qualified privilege under s 30 of the uniform defamation laws of 2005 (UDL). This requires the publication to have been made where the recipient of the information had an interest or apparent interest in having information; the matter was published to the recipient in the course of giving that information to the recipient; and the defendant’s conduct in publishing the matter was reasonable in the circumstances. The UDL sets out a number of considerations which the court may take into account when determining whether the conduct of the defendant was reasonable, including the extent to which the published matter is in the public interest, the seriousness of the matter, and the source of the information.
10.46 The statutory defence in the UDL is modelled on s 22 of the Defamation Act 1974 (NSW) but includes additional factors. Because of, among other things, its inclusion of public interest as a relevant consideration, the statutory defence is more useful to the media than common law qualified privilege, although it also requires proof that the defendant acted reasonably, which may not be a conclusion that courts will draw without convincing proof. Like the common law defence, the defence is defeated where the publication was actuated by malice.
10.47 Essentially the value to defendants of the statutory defence over the common law was that it could be used to defend publications in the public interest. The ALRC considers that a defence in similar terms to s 30 of the UDL is unnecessary in view of the balancing of public interest required for actionability of the cause of action.
10.48 The third type of qualified privilege defence is the extended common law defence of qualified privilege which encompasses the implied constitutional freedom of communication on government and political matters, as formulated by the High Court of Australia in Lange v Australian Broadcasting Corporation.The defence is defeated where the publication was actuated by malice. Again, because of the public interest required for actionability of the cause of action, the ALRC considers that there is no need to make special provision for this freedom. An invasion of privacy would not be actionable where this would infringe or unduly burden the implied freedom of political communication.
10.49 The proposal is then a statutory formulation only of the defence of qualified privilege at common law. The defence may be useful where a publication made under a relevant duty or interest is not protected by absolute privilege, by the public interest consideration in the cause of action, or by the defence of lawful authority set out above.
10.50 Examples may include where an individual shares a mutual interest with the recipient, such as in a tenancy or building matter involving a common landlord or neighbour; where the individual and recipient are co-employees or co-members of an association; or where a defendant is subject to a legal duty which necessitates the disclosure of private information such as where an individual provides a statement to police containing a third party’s private information or informs a professional body about the health or conduct of a member. The NSWLRC gave the example of a person providing an employment reference. Without a defence of qualified privilege, individuals would have to rely on broader defences which may provide inadequate protection.
10.51 There are a number of similar defences in state and territory surveillance devices legislation relating to communications which are reasonably necessary to protect a defendant’s interest, to protect the public interest, and are made in the course of legal proceedings. These may act as a guide for legislators. So too may the range of defamation defences available at US tort law. These were canvassed in D Butler’s submission. At US law, qualified or conditional privilege is also understood as common interest privilege and extends to the protection of an interest of the recipient of a defamatory matter, or a third person. In Indianapolis Horse Patrol, Inc. v. Ward (1966), 247 Ind. 519, 524, 217 N.E.2d, the Indiana Supreme Court held that:
The rule concerning a qualified privilege is that a communication made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged.
10.52 Whilst supporting the defence of qualified privilege, SBS qualified this support by arguing that concepts of reasonableness and proportionality should affect the operation of the defence and that guiding principles look at the conduct of the disclosing party (for example, was it reasonable? was it proportionate?). The ALRC has not included these particulars in its proposal, because the defence proposed is already limited by such factors.
NSW Law Reform Commission, Invasion of Privacy, Report No 120 (2009), [6.11]-[6.12].
Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Harbour Radio Pty Ltd v Trad  HCA 44; Atkas v Westpac Banking Corporation Ltd  HCA 25.
Roberts v Bass (2002) 212 CLR 1,  (Gaudron, McHugh and Gummow JJ).
Adam v Ward  AC 309, 334.
Bashford v Information Australia (Newsletters) Pty Ltd  HCA 5 (2004)  (McHugh J).
See, Defamation Act 2005 (NSW); Defamation Act 2005 (SA); Defamation Act 2005 (WA); Defamation Act 2006 (NT) 2006; Defamation Act 2005 (Qld) 2005; Defamation Act 2005 (Vic); Defamation Act 2005 (Tas).
Butler and Rodrick, above n 33, [3.1000–3.1050].
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3 (27 February 2013).
Law Institute of Victoria, Submission 22.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [6.12].
Eg Surveillance Devices Act 2007 (NSW) s 11(2); Surveillance Devices Act 1998 (WA) s 9(2).
D Butler, Submission 10.
American Law Institute, Restatement of the Law Second, Torts (1977) §§ 595, 596.
SBS, Submission 59.