Debate on qualified privilege is often problematic as it is the grey area that lies between two fundamental rights: freedom of expression and protection of reputation. In England qualified privilege has become an important defence, and was firmly under the spotlight in the landmark case of Reynolds v Times Newspapers Limited .
This case laid down the criteria whereby reporters and editors could enjoy a degree of protection from libel action. However, emphasis still remains on context. The position is similar in Australia, and due to contextual reasoning, tensions still surround the scope and reach of qualified privilege at common law. This well illustrated by the recent decision of the High Court of Australia in Harbour Radio Pty. Ltd. v Trad ( HCA 44).
The events giving rise to the proceedings took place approximately one week after the Cronulla Riots in December 2005. Keysar Trad (the respondent in this case)(pictured) delivered a speech at a “peace rally” in Hyde Park, Sydney, with around 5000 people in attendance. In his speech, Mr Trad attributed a proportion of blame to Radio 2GB (Harbour Radio Pty. Ltd.), claiming the station, is, “…winning the ratings, it is whipping up fears.” As a result, Mr Trad stated that Muslims in Australia were “suffering as a result of the racist actions of predominantly one radio station [2GB].”
The next day, in a program that went to air on Radio 2GB, “host”, Jason Morrison, played a short excerpt from a recording of the public rally the day before, afterwards discussing the events with callers. During the program, Morrison described Mr Trad as a “disgraceful” and “dangerous individual.” Morrison went on to accuse Mr Trad of the very same behaviour Mr Trad had levelled at 2GB, namely: misrepresenting the Islamic community, inciting violence, hatred and racism.
Mr Trad brought defamation proceedings against 2GB in the Supreme Court of New South Wales alleging that the broadcast conveyed imputations which were defamatory. Section 7A of the 1974 Act sets up procedures for the trial of defamation actions which depart radically from the common law system of trial (John Fairfax Publications Pty Ltd v Gacic (2007) -. The key question was whether the matter complained of was capable of bearing a defamatory meaning. The issue whether an occasion was one of qualified privilege was posed to the judge, whilst the issue of whether the privilege was lost by malice was for the jury.
Proceedings reached a head in 2007. In pursuant to s 7A(3) of the Act, a jury found that the 2GB broadcast conveyed the following eight imputations, which were defamatory of the plaintiff, Mr Trad:
“(a) the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;
(b) the plaintiff incites people to commit acts of violence;
(c) the plaintiff incites people to have racist attitudes;
(d) the plaintiff is a dangerous individual;
(g) the plaintiff is a disgraceful individual;
(h) the plaintiff is widely perceived as a pest;
(j) the plaintiff deliberately gives out misinformation about the Islamic community;
(k) the plaintiff attacks those people who once gave him a privileged position.”
In their defence, 2GB relied on substantial and contextual truth of the statements made and that each imputation was published on occasion of qualified privilege at common law.
Court Chief Justice McClellan, in his primary judgment ( NSWSC 750), ruled against Mr Trad, upholding the defence of “reply-to-attack” qualified privilege in respect of the imputations. Mr Trad was unsuccessful in arguing that the privilege had been defeated by “malice”. In delivery the judgment, Chief Justice McClellan criticised Mr Trad’s long term role as spokesman for the Lebanese Muslim community, finding that some of the imputations were true of Mr Trad, and that consequently, the remaining imputations did no further harm to Mr Trad’s reputation.
However, the Court of Appeal held ( NSWCA 61) that the findings by the primary judge of substantial truth had “proceeded on a false basis” as Justice McClellan had not correctly applied the “right-thinking community member test”. Consequently, these original findings could not be sustained.
On the issue of qualified privilege, the Court of Appeal differed, in part, from Justice McClellan’s judgment and held that the defence should not have been upheld in relation to imputations (c), (h) and (k). It was reasoned that these imputations were not “sufficiently linked” to the occasion of qualified privilege, being the response by 2GB to the public attack by the respondent. The remaining imputations, the Court held that qualified privilege did apply, and that this privilege was not defeated by malice.
The Court of Appeal ordered that the proceedings be remitted to the Common Law Division for the assessment of damages regarding these three imputations. Harbour Radio, were subsequently ordered to pay half of Mr Trad’s appeal costs.
High Court Judgment
There were three central points to this appeal:
(1) whether the defence of qualified privilege was available, and, if so, how this applied with respect to each imputation.
(2) If a defence of qualified privilege was available, is this then defeated by “malice”?
(3) The complaint made by 2GB of the treatment by the Court of Appeal of its’ defences of truth and contextual truth.
In relation to qualified privilege, the High Court found that the defence of “reply-to-attack” under qualified privilege applied to six of the eight defamatory imputations: (a), (b), (c), (d), (g) and (j). -. The judgment highlighted that there was a sense hypocrisy on the part of Mr Trad in relation to imputations (a), (b) and (c) which revealed the true purpose behind Mr Trad’s attack which was to incite racism and violence. As such, 2GB’s response was deemed reasonable and relevant.
The claims that Mr Trad is “dangerous” and “disgraceful” ((d) and (g)) were deemed to be linked to the statements that Mr Trad does not represent the views of the Muslim community and presents misinformation, particularly about issues concerning that community (imputation (j)). This, the Court concluded undermined the credibility of Mr Trad’s assertion that the “suffering” of the Islamic community was in part due to 2GB.
However, the High Court concluded that imputations (h) and (k) were not sufficiently connected to the attack on 2GB. The term “pest” in imputation (h), the High Court interpreted as
“…someone who is annoying and may be so because they interfere in matters which are not of their concern. It may therefore imply some officiousness in the person’s conduct.” .
The Court held that the attacks upon 2GB were not of this nature; no link could be established between this statement and the attacks. The High Court remitted these two imputations (h) and (k) to the Court of Appeal for determination of the contextual truth defence. .
In relation to malice Mr Trad had made an application for leave to file a notice of cross-appeal on the question of malice. By a majority this application was denied on the basis that there would be insufficient prospects of success in demonstrating error by the Court of Appeal in its’ conclusions on the question of malice, and no ground of general importance is involved. .
Justice Heydon, gave an elaborate and dissenting judgment in which, his Honour found that the broadcast was published with malice which defeated the defence of qualified privilege. His Honour reasoned that if the appellant knew that its statements were untrue when they were made, malice is probably established. His Honour then concluded that on the basis of the evidence there were two possibilities: Mr Glasscock had not retreated because of a gesture by the respondent, and that he had falsely told Mr Morrison that he had. Alternatively, Mr Morrison truthfully told the audience of Mr Glasscock’s complaint, while the Chief Operating Officer at 2GB knew this to be false. . Consequently, Justice Heydon would have dismissed the appeal, granting Mr Trad leave to cross-appeal on the issue of malice.
Finally, On the issue of substantial and contextual truth, their Honours made reference to the Court of Appeal’s application of the “right-thinking community member test”. In relation to this point there were two important authorities cited: In Slatyer v The Daily Telegraph Newspaper Co. Ltd. (1908), Griffith C.J. identified the test as meaning “a man of fair average intelligence”. More recently, in Radio 2UE Sydney Pty. Ltd. v Chesterton (2009), French C.J., Gummow, Kiefel and Bell J.J. disfavoured any additional requirement of “right-thinking” and preferred, as the referee of the issue of whether a person had been defamed, an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs. .
Their Honours found that the defence of substantial truth may present a ready choice for decision by the judge sitting. However, it was noted that in other cases the imputation may depend upon more than primary fact finding. Their Honours concluded that imputation (g), which refers to Mr Trad being a “disgraceful individual” falls under this category. In such a case the criteria laid down in Chesterton (referenced above), should be applied. .
The High Court allowed the appeal by 2GB and the orders made by the Court of Appeal were set aside. The Court held the defence of qualified privilege at common law in relation to imputations (a), (b), (c), (d), (g) and (j). The Court remitted the defence of substantial truth in respect of imputations (b), (c), (d) and (g) back to the Court of Appeal along with contextual truth regarding imputations (h) and (k). On costs, because each side had some success, the Court concluded that there should be no costs orders on either the appeal or the cross-appeal.
This case has all the hallmarks of one that will add fuel to this debate. As noted in the introduction, due to the inherent grayness of this area, it is difficult to establish such issues as black and white. If further confirmation of this was needed, Justice Heydon provided it, choosing to dissent on the issue of malice. This case also serves to further highlight that context remains the ultimate determinant.
The media have been afforded a broad protection by qualified privilege. Indeed, one of Mr Trad’s submissions related to this precise point; by classifying its’ response as a “counter-attack” 2GB seeks to broaden the scope of its interest in publishing defamatory matter to its audience. . While Mr Trad’s submission was unsuccessful in the appeal, the question posed is an important one. The scope and definition of the defence “reply-to-attack” remains a relatively under-explored issue and this case has demonstrated the need to examine such issues.
The case of Alexander v Clegg (2004) in the New Zealand Court of Appeal, offers something of a solitary beacon in terms of development. In it, the Court described the privilege as one “to hit back” by a “counterpunch” rather than “…to keep one hand behind [the defendant’s back]”. However, the High Court in Trad rejected this proposition as it would extend the scope of the privilege too far and distort the balance indicated by paragraphs (a) and (b) of s 3 of the 1974 Act.
In Europe, the threshold for proving malice is high, as it is underpinned by Article 10 of the European Convention. As was highlighted in the case of Jameel (2006), the freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. As a result, there appears to be a reluctance to defeat the defence of qualified privilege, so as not to hinder any part of a democratic society. In the U.S., the case of The Gazette, Inc. v Harris (1985) affirmed that malice is a behavior actuated by motives of personal spite or ill will independent of the occasion on which communication was made. By putting the onus on the claimant to prove malice under such criteria it places obvious limitations on its availability. However, this is not necessarily a bad thing. In Reynolds (1999), Lord Nicholls summed up, quite carefully, the benefits of contextual reasoning:
“This solution has the merit of elasticity…this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.” [p.202].
Finally, it should be borne in mind also that 2GB didn’t get it all their own way. Perhaps, Justice Heydon’s dissent along with the recent case of Qadir v Associated Newspapers (2012), where the defence of qualified privilege failed, is indicative that the tide is slowly turning. This debate is not yet over.
Richard Ridyard is a B.C.L. student at the University of Oxford