Week 11LWB133

Defences to Defamation and Remedies continued

Privilege

Two types of privilege:

• Absolute privilege

• Qualified privilege

Absolute Privilege

Some occasions considered so important that the free exchange of views without the threat of liability in defamation is necessary.

Absolute Privilege

Common law• Statements made in the course of parliamentary proceedings• Statements made in the course of judicial (and quasi-

judicial) proceedings• Communications between a solicitor and client in relation to

judicial proceedings• Communications between ministers of state in the course of

official duties• Communications between spouses

Absolute Privilege

Queensland - ss10-12 Defamation Act 1889

• s10 - speeches in parliament; petitions to parliament; and reports to parliament

• s11 - judicial proceedings

• s12 - reports of official inquiries

Qualified Privilege

Common law• The publisher has an interest or duty (legal, moral

or social) to publish AND• The recipient has a corresponding interest or duty

to receive it Reciprocity is essential

Qualified Privilege

Matters of public interest– reports of parliamentary proceedings, fair and accurate reports

of judicial proceedings, inquiries...• Interest of the recipient

– legal, moral or social duty to publish and an interest to receive the information

• Community of interest– employment, educational...

• Interest of the publisher– attacks on reputation or property

Qualified Privilege

Qualified as the protection may be lost if:

• Publisher is actuated by malice; or– knows matter to false, recklessly indifferent, ill will or

spite, irrelevant material• Extent of publication exceeds what is reasonable

Qualified Privilege

Queensland - ss13&16 Defamation Act 1889• s13(1) - publish in good faith for the information of the public

… a fair report of:(a)Proceedings of parliament(b) extracts of parliamentary papers(c)proceedings of court(d) proceedings of Commission inquiries(e)government department notices(f)proceedings of local government, boards…(g) proceedings of public meetings as far as they relate to

matters of public concern

Qualified Privilege

• s13(2) - “good faith for the information of the public” Publisher not actuated by ill will or improper motive; and The manner of the publication is such as is ordinarily and fairly used in the case of publication of the news

• s17 - burden of proving absence of good faith lies on the party so asserting

Qualified Privilege

• s16(1) - publications made in good faith:(a)by a person with lawful authority over another in the course

of censure of the other(b)seeking redress or remedy for a private or public wrong

from a person who has authority over the person defamed(c)for the protection of the interests of the publisher or other

person or for the public good(d)In answer to an inquiry/giving information to a person,

reasonably believed to have an interest in knowing the truth

Qualified Privilege

s16(1) - publications made in good faith (cont):

(e)giving information to person with the belief they have an interest in knowing the truth

(f)on the invitation or challenge of the person defamed(g)to answer or refute other defamatory material published(h)in the course of discussion of some subject of public

interest which is for the public benefit

Good Faith

s16(2) - “good faith” Publication is relevant to matters in subsec(1) Publication does not exceed what is reasonable Publisher not actuated by ill will or improper motive Publisher did not believe the defamatory matter to be untrue

Constitutional Protection

Lange v Australian Broadcasting Commission

Right contained in the Australian constitution was a negative right not to have the right to freedom of political expression unreasonably restrained by either the common law or statute-based law of defamation

Constitutional Protection

For the defence to be available it must be proven:• The communication is about a government or

political matter;• Publisher’s conduct was reasonable; and• Publisher was not actuated by malice

Defamation

Remedies

Remedies

• Interlocutory injunction

• Damages

• Stop writ

Injunctions

• Discretionary remedy• Mandatory injunction

– Requires a person to do something• Prohibitory injunction– Restrains a person from doing committing or

repeating an act• Interlocutory injunction– Continues until hearing or further order

Reluctance to Grant Injunction

• Right to be heard by jury• Freedom of speech• Right to protect reputation

• Power exercised only in the clearest of cases– Shiel v Transmedia Productions Ltd

Interlocutory Injunction

Plaintiff establish:

• no real grounds for supposing that the defendant will succeed upon any defence;

• matter clearly defamatory;• if successful, plaintiff recover more than

just nominal damages

Damages

Primary remedy

• To compensate the plaintiff for injury suffered to reputation

• Determination by jury

Assessment

• nature and extent of the defamatory publication• effect of the defamation on those who read it• method of the publication• position and standing of the plaintiff• publication of any retraction or apology• conduct of the defendant from the time of

publication to the verdict

Types of Damages

Actual pecuniary loss

Damages to the feelings as well as reputation

Aggravated damages

Exemplary or punitive damages

Mitigation

Relevant factors include:

• Apology or retraction;• Recovery in other actions in respect of the same

matter;• Poor reputation;• Truth; and• Absence of malice