The defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation - generally where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. Giving a reference for a job applicant, answering police inquiries, communications between teachers and parents, local councillors, officers of companies, employers and employees, or traders and credit agencies, are all relationships that are protected by qualified privilege. However, the privileged communication must relate to the business at hand - the relationship cannot be abused for the purpose of relaying gossip.
A person who is acting in defence of her or his reputation can claim qualified privilege, as long as what is said is relevant to that defence. It is also available even if what was said was untrue, as long as the required relationship exists. However, qualified privilege is not a licence to say untruths. People making statements must believe that what they say is true.
Government and political matters are proper subjects for public discussion and such discussion is covered by the defence of qualified privilege. To maintain the defence of qualified privilege for such publications the publication must not be motivated by malice and in determining whether there is malice in these cases the court will consider whether the publisher has acted reasonably. The publisher will have to satisfy the court that it has taken proper steps to verify the accuracy of the material and did not believe the material to be untrue and further the publisher's conduct will not be reasonable unless the publisher has sought a response from the person the subject of the publication and has published any response unless it was not practical or it was unnecessary to do so.
In order for the defence to apply, the party making an otherwise defamatory statement must be subject to a duty to make the statement, and the statement must be made to a party bearing a corresponding interest in receiving the information. Examples of circumstances in which the defence may apply include where an employer prepares a character reference for a former employee, or where a corporation makes disclosures required by a government body, such as the Australian Securities and Investments Commission. Where such communications are defamatory in nature, the employer or corporate defendant may be absolved of liability by arguing the defence of qualified privilege.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.