The defence of qualified privilege has long been available to those who seek to counter defamatory comments that have been made about them. By invoking the privilege, a person defamed may make contrary comments that might otherwise themselves be found to be defamatory, but for the privilege. Senior Associate, Mitchell Coidan discusses the case and the defence.

Harbour Radio Pty Ltd (2GB) successfully argued in the High Court of Australia that the defence of qualified privilege, at common law, was available to it in relation to a number of defamatory imputations made by 2GB’s broadcaster in relation to Mr Trad, who spoke at a “peace rally” the week following the 2005 Cronulla riots in Sydney.  

Background

Mr Trad attended the rally in Hyde Park, in Sydney, and whilst speaking at the rally accused 2GB and, in particular, its broadcasters of having incited the aggression which led to the Cronulla riots. Specifically, Mr Trad had stated that “those racist rednecks in tabloid journalism” had been responsible for “5000 filled with hatred” who had participated in the rioting.  

The day following the rally, 2GB permitted a broadcast by its Mr Morrison, which described Mr Trad as a “disgraceful individual” and a “well known apologist for the Islamic community spewing hatred and bile at anyone who did not agree with [his] philosophies and principles including this radio station”.

Following the 11 minute broadcast, Mr Trad commenced proceedings in the Supreme Court of NSW alleging that the comments conveyed various imputations about him which were defamatory. The specific imputations that a jury found were conveyed by the broadcast and were defamatory were that:

  1. he stirred up hatred against a 2GB reporter, which caused the reporter to have concerns about his own personal safety
  2. he incites people to commit acts of violence
  3. he incites people to have racist attitudes
  4. he is a dangerous individual
  5. he is a disgraceful individual
  6. he is widely perceived as a pest
  7. he deliberately gives out misinformation about the Islamic community, and
  8. he attacks those people who once gave him a privileged position.  

First Instance Proceedings

In the Supreme Court of New South Wales, 2GB defended its broadcast on the basis that the substantial and contextual truth of the statements made (and the fact that they were based on a fair comment on a matter of public interest) and that each imputation was published on an occasion of qualified privilege, at common law.  

At first instance Chief Justice McLellan dismissed Mr Trad’s case and entered judgment for 2GB. He found that the imputations at (b), (c), (d) and (g) were substantially true and held that the effect of the publication of imputations (a), (h), (j) and (k) occasioned no further injury to the reputation of Mr Trad. Further, his Honour upheld the defence of qualified privilege in respect of all imputations and rejected the claim by Mr Trad that the privilege was defeated by malice.  

NSW Court of Appeal Proceedings

Mr Trad was partly successful in his Appeal to the NSW Court of Appeal where it was held that 2GB was not entitled to the protections of a defence of qualified privilege in relation to imputations (c), (h) and (k).  

High Court Proceedings

In the High Court, 2GB sought to have the primary judgment in its favour restored. There the majority held that the common law defence of qualified privilege applied to imputations (a), (b), (c), (d), (g) and (j) as they relevantly related to Mr Trad’s credibility. The defence did not, however, apply to imputations (k) and (h) as those imputations were found to be irrelevant to Mr Trad’s attack on 2GB.

Although Mr Trad had sought leave to Cross Appeal against 2GB, contending that the broadcaster’s comments constituted malice (such that it was not entitled to the protections of the defence), the majority held that Mr Morrison’s conduct had not been made with reckless indifference to constitute malice, and the defence of qualified privilege was still available to 2GB.  

What is qualified privilege?

The majority of the High Court identified and approved Judge Dixon’s definition of the foundation of the privilege, in Penton v Calwell (1945) 70 CLR 219 at 233-234:  

“The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect.”

The judgment provides that there will be two limits on the application of the common law defence of qualified privilege:

  • the response must not go beyond the occasion, and
  • it must not be malicious.  

As such qualified privilege will apply where the comments are made in response to an attack, where that response was commensurate with the level and scope of the attack and where it was made bona fide for the purpose of vindicating the reputation of the person being attacked.  

The matter has now been remitted back to the New South Wales Court of Appeal for consideration of the defenses of substantial truth of imputations (b), (c), (d) and (g) and contextual truth for imputations (h) and (k) and the assessment of damages.