Malice defeats the defence of qualified privilege in Australia. If a person can prove a defendant acted without malice, then they will be protected from defamation proceedings.
The law of qualified privilege in Australia is designed to protect people who make statements about others in certain situations.
This may include situations where the person making the statement is required to do so by their job, or where the statement is made in order to protect the interests of another person.
In order for the defence of statutory qualified privilege to apply, the Uniform Defamation Acts provide that the following elements must be present:
the recipient has an interest or apparent interest in having information on some subject;
the matter is published to the recipient in the course of giving him or her information on that subject;
the conduct of the defendant in publishing the material in question is reasonable in the circumstances.
However, common law qualified privilege is more commonly relied on than the statutory defence in Australia. It is the most common defence in Australia in defamation.
At common law, a publication is made on a privileged occasion if:
it is made without malice;
it is made by a person in discharge of some public or private duty, whether legal, social or moral or for the purpose of protecting some private interest;
it is made to a person who has a corresponding interest in receiving the communication.
If these elements are present, then the person making the statement will likely be protected from defamation proceedings.
Qualified privilege is not an absolute defence, however, and there are some situations where it may not apply.
For example, if the person making the statement knows that it is false, or if the statement is made with the intention of causing harm to the person it is about, then qualified privilege may not apply.
Qualified privilege is a complex area of law, and it is always advisable to seek legal advice before making any statements about others that could potentially be defamatory.