Week 11
LWB133
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)
(b)
(c)
(d)
(e)
(f)
(g)
Proceedings of parliament
extracts of parliamentary papers
proceedings of court
proceedings of Commission inquiries
government department notices
proceedings of local government, boards…
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