Defamation law seeks to balance two competing interests: the protection of an individual's reputation and the freedom of speech.
One of the defences available to a defendant in a defamation case is common law qualified privilege, which arises when there is a reciprocity of duty and interest between the publisher and the recipient of the statement.
This blog post provides a better understanding of common law qualified privilege, focusing on the concept of “interest”, as highlighted in the case of Bolton v Stoltenberg [2018] NSWSC 1518.
The Defence of Qualified Privilege
A communication is protected by common law qualified privilege when the publisher has a legal, social, or moral interest or duty to make a statement on a particular occasion, and the recipient has a corresponding interest or duty to receive it (Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470).
The question of whether common law qualified privilege applies depends on a close scrutiny of the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication (Bashford).
As a result, determining whether qualified privilege applies can be challenging and requires a careful analysis of the specific facts of the case.
Reciprocity of Duty and Interest
The concept of reciprocity of duty and interest is essential to the defence of qualified privilege.
To establish this reciprocity, the publisher must demonstrate that they had an interest or duty in making the statement and that the recipient had a corresponding interest or duty in receiving it.
In the case of Visscher v Maritime Union of Australia (No 6), Beech-Jones J rejected a submission that readers of a website operated by the Maritime Union of Australia had a direct or indirect interest in the maritime industry simply because of the nature of the forum. Beech-Jones J emphasized that the defence of common law qualified privilege could not apply to unrestricted publications available to the general public.
Excessive Publication
Even when there is a reciprocity of duty and interest, excessive publication may still defeat the defence of qualified privilege.
Excessive publication occurs when a statement is made available to a broader audience than necessary to satisfy the interest or duty.
In Vakras v Cripps, the Victorian Court of Appeal held that publication to the world at large on general websites could be evidence of excessive publication and thus, not protected by qualified privilege.
Bolton v Stoltenberg [2018] NSWSC 1518
In Bolton v Stoltenberg [2018] NSWSC 1518 the defense of common law qualified privilege was considered by the court.
The case involved a Facebook page called Narri Leaks, which was claimed to be dedicated to dealing with issues of interest to persons within the Narrabri Shire. The defendant, Mr. Stoltenberg, argued that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.
The court, however, found that the readership of Narri Leaks extended far beyond the residents of the Narrabri Shire Council who were interested in the finances of the Council. The judge cited evidence such as interrogatories provided by Mr. Stoltenberg, Facebook posts made by him, and Facebook activity logs, among other things. The posts themselves contained references to the wide readership of Narri Leaks, and the defendant admitted to having spent money on "boosting" posts all over the state.
As a result, the court concluded that Mr. Stoltenberg had failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter.
Furthermore, even if the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, the evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication.
The court also rejected the argument that the matters complained of fell within the special and reciprocal interest identified by Mr. Stoltenberg. While the finances of the Narrabri Shire Council and the appointment of General Managers were important topics in the Narrabri area, the defendant had no duty to attack the plaintiff's reputation. The court concluded that the defense of common law qualified privilege was not applicable in this case.
This case demonstrates that in the digital age, establishing a limited audience for defamatory publications can be challenging, especially when social media platforms are involved. Courts will carefully scrutinize the facts to determine whether a defense of qualified privilege can be upheld. In this case, the court concluded that the readership of the Narri Leaks Facebook page was not limited to residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, and therefore, the defense of qualified privilege was rejected.
Key Take-Aways
Establishing the defence of qualified privilege in defamation cases requires a close examination of the circumstances surrounding the publication and the interests or duties of the publisher and recipient.
It is essential to demonstrate a reciprocity of duty and interest and to avoid excessive publication.
Ultimately, whether qualified privilege applies will depend on the specific facts and context of each case.