Defamation law is an area of legal practice that seeks to protect individuals from harmful statements. In some instances, a defence known as statutory qualified privilege can be invoked to shield a defendant from liability, provided certain conditions are met.

A key element in this defence is the notion of "reasonableness."

In this blog post, I examine the concept of reasonableness in the context of statutory qualified privilege, with a focus on the case of Lorbek v King [2023] VSCA 111 to provide a deeper understanding of its practical application.

Understanding Reasonableness in Statutory Qualified Privilege

The defence of statutory qualified privilege, as set out in section 30 of the Defamation Act 2005, requires the defendant to establish that their conduct was reasonable in the circumstances.

This includes demonstrating that their conclusion followed logically, fairly, and reasonably from the information obtained and that the manner and extent of the publication did not exceed what was reasonably required in the circumstances.

The Case

In Lorbek v King [2023] VSCA 111, the plaintiffs were associated with Lorbek Luxury Cars (LLC). They lodged a case against the defendant, PK, for defamation based on four posts PK made on various platforms.

The plaintiffs lost initially.

The plaintiffs appealed the initial judgment to the Victorian Court of Appeal on several grounds, asserting that the initial judge had erred in their conclusion regarding the qualified privilege defence, the issue of malice, and the assessment of damages.

The backstory to the lawsuit involved the sale of a vehicle, which had been owned by Porsche Centre Brighton (PCB), to LLC.

At various points, the vehicle was deemed unroadworthy due to issues with its front and rear rotors.

However, the judge found that LLC was not aware of these issues at the time they sold the vehicle to PK.

The posts by PK that were the subject of the lawsuit had been made on Law Answers and Google Reviews.

The court found that PK's Law Answers post had been published to the site's moderator, and the Google Reviews had been published to LLC's marketing manager and a small number of LLC's customers and potential customers. The judge inferred that these posts were read by individuals who had an interest in reading reviews from people who were dissatisfied with their experiences with LLC. However, the court did not find evidence to support a wider publication of these posts, leading to the conclusion that only a small number of people had read the reviews.

The Appeal

The Court of Appeal provided a comprehensive analysis of reasonableness in the context of statutory qualified privilege.

The Court of Appeal ultimately found that PK's conduct in publishing the impugned statements was reasonable in the circumstances.

Key Factors in Assessing Reasonableness

Lorbek v King [2023] VSCA 111 provides several valuable insights into the factors that are considered when assessing reasonableness in the context of statutory qualified privilege.

Some of these factors include:

The defendant's inquiries and investigations: The Court detailed PK's extensive investigations and the information he had received by the time of publication, which supported the reasonableness of PK's conduct.
Reliability of information sources: It was deemed reasonable for PK to rely on the information provided to him by reliable sources, including employees of relevant businesses and organizations.
Genuine and reasonably held beliefs: The Court accepted that PK held a genuine and reasonably held belief that LLC knew the vehicle was unroadworthy when it was sold, supporting the reasonableness of his conduct.
Assessment of credibility and reliability of witnesses: The judge's evaluation of the credibility and reliability of witnesses, such as Mr. Homann, played a significant role in determining the reasonableness of PK's conduct.