05 Aug 2021

Hit-and-run reporting – raising the qualified privilege defence to a defamation claim

By Ian Bloemendal, Nick Josey

Consider whether the information in the publication can be supported by a reputable source – does the story go beyond what the source said? If so, it may impact heavily upon reliance on the defence of qualified privilege.

Reporting on the news can be a tricky business.  While there is little doubt that the general public are hungry for, and consume, the news each day, those reporting the news are consistently having to tread a very fine line between full and transparent reporting and a potential defamation suit.  Although it is often difficult to win on, media outlets were sometimes given little choice but to rely on a qualified privilege as a defence to defamation claims (prior the new public interest defence arriving as part of Australian defamation law reform).

A recent decision, Wraydeh v Fairfax Media Publications Pty Limited & Ors [2021] NSWCA 153, shows that all is not lost for media organisations, with  two media outlets succeeding with respect to their reporting on a suspected hit-and-run, after two other defendants had chosen to settle instead.

What is "qualified privilege" and when will it apply?

Qualified privilege is a defence of "confession and avoidance" at common law and under statute to defamation claims. It recognises that, in some circumstances, the public interest requires a person to be able to make frank and uninhibited communication to a recipient without the fear of being held liable for defamation, even if it turns out that the statements are incorrect.

Different tests apply under both common law and statute:

  • Common law: requires that:
    • the communication is published on a privileged occasion – that is, both parties have an interest in the information being conveyed (generally referred to as a "community of interest");
    • the communication in question was related to the privileged occasion; and
    • there was no malice in the publication.

The onus of proving malice lies with the relevant plaintiff, however, the defendant bears the burden of proof in respect of the other elements.  Reasonableness is not an element of the defence of qualified privilege at common law.

  • Statute: defamation legislation enacted across different Australian States and Territories is not entirely uniform, but generally requires that:
    • 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 to the recipient information on that subject;
    • the conduct of the defendant in publishing that matter is reasonable in the circumstances. (Legislation identifies various considerations that may be taken into account in determining the element of reasonableness but they are not be treated as a checklist). Additionally, the requisite standard of reasonableness a defendant must achieve is not one of perfection; and
    • the publisher must, at the time of publication, believe on reasonable grounds that the recipient has the relevant "apparent interest".

As the defence is founded on notions of public policy, courts have traditionally set the bar high in deciding when freedom of communication outweighs an individual's right to the protection of his or her reputation.

Hit-and-run leads to mistaken identity

In about August 2016, Mr Hassan Wraydeh was involved in a car accident at Punchbowl, New South Wales.  His girlfriend unfortunately died as a result of her injuries from the accident.  Police attended the scene, as did journalists from the defendant media companies and the Appellant, Hussein Wraydeh (who was Mr Wraydeh's brother). Hassan Wraydeh had apparently fled the scene prior to their arrival.

Soon after the incident, the Police issued three media releases and published a Facebook post alerting media outlets as to what was known of Hassan Wraydeh, and the need to locate him.  In both the third media release and the Facebook post, the Appellant was specifically named. For example, one of the police press releases about the incident stated "Hussain Wraydeh may have information vital to clarify the circumstances leading up to the crash," and one of the images that circulated online was that of the Appellant.

Following the media releases and Facebook post, the defendant media companies published a number of articles reporting on the collision, the death of Mr Wraydeh's girlfriend, and Mr Wraydeh's absence from the scene of the accident.  Almost of the publications specifically named the Appellant and described him as being a driver of the car in which Mr Wraydeh's girlfriend had passed away. Before doing so, journalists claim they had checked with sources and verified that the Appellant was the person suspected of driving and abandoning the scene, and therefore named "Hussain" as the wrongdoer.

The Appellant claims that he had been defamed by the various publications so commenced proceedings against Fairfax, Nationwide, Dailymail.com, and the State of New South Wales (through the Police). 

He alleged that the publications conveyed a number of imputations, including:

  • that he was the "hit and run" driver;
  • that he was a cruel and callous person;
  • that he was the subject of a police manhunt, or was wanted by police over a fatal car crash;
  • that he was a criminal; and
  • that he had so conducted himself as to be reasonably suspected by police of being involved in a fatal car accident.

He resolved his proceedings with Dailymail.com for $100,000 and the State of NSW for $70,000, and sought damages from the remaining two news organisations (Fairfax and Nationwide) who elected to defend the claims. Both maintained a defence of qualified privilege (amongst other defences) to almost all of the imputations.  In his reply to the defences, the Appellant asserted that the publications were actuated by malice.

The proceedings were tried before a jury in November 2019, which found favourably for the Appellant in that:

  • all of the imputations pleaded (bar one) were conveyed, and were defamatory of the Appellant; and
  • none of the defences had been made out, except for one instance of statutory qualified privilege in respect of one of the publications by Nationwide.

The availability of common law privilege fell to the trial judge for determination.  The Court upheld that defence for all articles bar one from Fairfax (which had not pleaded qualified privilege), and, after some consultation, awarded damages for in the sum of $7,500.

The Appellant appealed the findings of the trial judge, asserting amongst other things that the Court had erred in upholding the qualified privilege defence.

Findings on Appeal

The Court of Appeal considered each of the elements relevant to the common law qualified privilege defence and upheld the primary judge's findings on qualified privilege at common law. 

As to whether this was a "privileged occasion", the Court noted that, as a general proposition, the requirement of reciprocity of interest can preclude the applicability of the defence on occasions where material is published to large audiences (which would include large-scale media publications).  However, here, the Court concurred with the trial judge's determination that:

"all members of the public have a reciprocal interest in having the information that police had about those matters [being those the subject of the publications]"

The Court therefore agreed that the public did have an interest in receiving information about there being a car accident, and that a suspected involved person was wanted for investigation.

Accordingly, it was held that this was a privileged occasion.

As to whether the publications were related to the privileged occasion, the Appellant argued that the publications, essentially, went too far because they:

  • went beyond what was stated in the Police media releases; and
  • named the Appellant as the person being, or believed to have been, the driver of the car.

The Appellant argued that the privilege afforded by the occasion was consequentially lost. 

The Court rejected this assertion, and clarified that the publication needs only to be related to the privileged occasion. There does not have to be a need to publish the defamatory imputations in order to fulfil the purpose served by the privilege.  Fairfax and Nationwide were not limited or confined to the content of the media releases, given that such a conclusion would suggest that they were mere agents of the Police without any relationship with the public independent of that status, which is not the case.  Fairfax and Nationwide were free to publish information "germane" to the occasion, whatever its source, provided that the publication was honestly made, and did not go beyond the scope of the privilege.  Here, both had complied with this obligation, and therefore satisfied this element of the defence.  It also meant that the Appellant could not make out the malice element.

Key takeaways

There are some key lessons for media outlets (and aggrieved persons) from this case:

  • first, consider whether the information in the publication can be supported by a reputable source – does the story go beyond what the source said? If so, it may impact heavily upon reliance on the defence of qualified privilege.
  • second, always consider who the publication is aimed at? If it is aimed at the general public and the content may be defamatory, consider whether it is truly on a topic that the public has an interest in receiving information on (in contrast to information that might be interesting to the public) in order to ensure that the reciprocity of interest argument is as strong as possible.
  • third, consider whether a person needs to be named / identified. In order for a person to be defamed, they must be capable of being identified (whether by name, photo or the factual matrix).Here, the media outlets chose to identify the person. While this was held to be not unreasonable in this instance, that may not always be the case.
  • fourth, if you are a claimant and you have received a small award, in circumstances where serious adverse credibility findings have been made against you by the trial judge, think very hard before exposing yourself to the risk of an adverse costs order with an appeal.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.