10 Dec 2012

Defamation defendants don't have to show "pressing need" to establish common law qualified privilege

by Douglas Bishop, Gail Noe

It is accepted law that for a defamatory statement to attract the common law defence of qualified privilege, both the maker and the recipient of the defamatory statement must have an interest in what is conveyed – commonly referred to as reciprocity of interest or "community of interest" – or a duty must exist on the part of the maker of the statement.

However, until now it was unclear whether qualified privilege could be invoked in circumstances where a defamatory statement was made voluntarily to protect or further personal interests, rather than in answer to a request.

The High Court's decision in Papaconstuntinos v Holmes a Court [2012] HCA 53 (5 December 2012) has settled this question. The majority held that, in cases where a defendant has volunteered a defamatory statement in order to protect purely personal interests, there is no additional requirement that there be a "pressing need" on the part of the defendant to protect those interests for the statement to be protected by the common law defence of qualified privilege.

The dispute over the rescue plan for the Rabbitohs

In 2005, when South Sydney District Rugby League Football Club was experiencing financial problems, Mr Peter Holmes à Court and Mr Russell Crowe put forward a proposal to provide financial assistance to the Club, in exchange for a controlling interest in its management. The proposal had to be approved by the Club's members at an Extraordinary General Meeting ("EGM").

At the time, Mr TonyPapaconstuntinos was the director of a club associated with the Club, and opposed the proposal. Mr Papaconstuntinos was also employed by the Construction, Forestry, Mining and Energy Union ("the CFMEU"). Shortly before the EGM, Mr Holmes à Court faxed a letter to Mr Andrew Ferguson, the State Secretary of the CFMEU, which Mr Papaconstuntinos claimed contained defamatory imputations. The letter was published to a small number of other people. Mr Papaconstuntinos sued Mr Holmes à Court for defamation.

Sufficient interest to attract qualified privilege?

At trial, Justice McCallum held that the letter conveyed three imputations defamatory of Mr Papaconstuntinos, including that he was reasonably suspected of corruptly misusing funds. Despite finding that the recipients of the letter had an interest in receiving the information, and not denying that Mr Holmes à Court had some interest in conveying it, Justice McCallum did not consider that such interest as existed was sufficient to give rise to the defence of qualified privilege. Mr Papaconstuntinos was awarded damages of $25,000. Mr Holmes à Court appealed.

The NSW Court of Appeal overturned Justice McCallum's decision and entered judgment for Mr Holmes à Court. Mr Papaconstuntinos appealed to the High Court.

The High Court

In appealing to the High Court, Mr Papaconstuntinos contended that a defendant who is seeking to protect purely personal interests in making a defamatory statement must not only have some identified interest to protect, but also a pressing need to protect that interest. The majority said that Mr Papaconstuntinos was really seeking to identify a test of reasonableness of the defendant's conduct as a further qualification of the privilege.

The majority rejected this approach. They observed that, if the defendant has a legitimate interest to protect in making the defamatory statement, the occasion is protected by qualified privilege. There is no requirement:

  • that self-interest operates as a disqualification or demands something more, such as some compelling or pressing need or urgency, to justify the statement; or
  • that it be reasonably necessary to have made the defamatory statement at the time the statement was made.

Accordingly, the majority dismissed the appeal.

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