The Law Handbook 2024

1012 Section 11: Rights, activism and fair treatment at work person must have a legitimate interest in receiving the communication. Examples include information given to police concerning a suspected offence, or information provided by one employer to another about the character of a person who the recipient of the information may employ. 2 Statements made to further a legitimate common interest. Examples include com­ munication between an employer and their employee (or between two employees) concerning the running of the business; discussions between committee members about the committee’s work; and communication between members of a trade union and its officials on industrial matters. Only in unusual cases (e.g. public safety warnings), and cases concerning political matters (see point 5, below), will publication in a newspaper or on television be protected by qualified privilege. This is because it is very rare that the public as a whole has a legitimate interest in receiving the communication. However, a newspaper circulated to a limited readership (e.g. a trade union journal) may be covered by qualified privilege. 3 Protection of a legitimate interest. If, for example, a person’s reputation has been attacked in public, their reply to that attack is protected by qualified privilege. Similarly, a response to an attack upon one’s employer is privileged. 4 Fair reporting on public proceedings. Qualified privilege applies to fair and accurate reports of parliamentary or judicial proceedings, including reports based on parliamentary court documents, because such reporting is viewed as being in the public interest. The Defamation Act also provides statutory defences for: – the publication of public documents (s 28); – the fair reporting of proceedings of public concern (s 29); and – the publication of matters concerning an issue of public interest (s 29A). 5 Discussion of government and political matters. Every Australian has an interest in disseminating and receiving information, opinions and arguments about the government and about political matters that affect Australians. When a defamatory statement is made to a wide audience (but not to electors in a single electorate), the publication must be reasonable. This usually means that the publisher must show that they had reasonable grounds for believing the statement to be true, took proper steps to verify it and, where possible, included a response from the person defamed. 6 Reasonable publication. The Defamation Act (s 30) contains a form of qualified privilege for publications where the publisher’s conduct is ‘reasonable’. Whether conduct is reasonable is determined in accordance with factors set out in the Act. Fair comment The common law defence of ‘fair comment’ applies to comments/opinions expressed about matters of public interest. The name of this defence is misleading as the comment does not need to be fair (i.e. it doesn’t need to be reasonable or just). It only needs to be an opinion that a person, however prejudiced, could honestly hold. A person may publish any comment/opinion to the world at large, even if the meanings conveyed are defamatory and false, provided that: • the comment concerns a matter of public interest. This includes comments about the government, the administration of public services and institutions, and matters submitted to public criticism (e.g. books, plays, concerts and films); • the defamatory imputation is understood (by those to whom it is published) to be a comment (i.e. an opinion, not a statement of fact). Statements of fact are not protected by the fair comment defence and must either be proved to be true, or be protected by absolute or qualified privilege; and • the defamatory imputation conveyed by the comment is based on facts that are true and which were either set out, or sufficiently referred to, in the publication, or which are notorious. Like qualified privilege, the defence of fair comment can be defeated if the plaintiff can establish that the defendant made the defamatory comment maliciously. In the context of fair comment, ‘malice’ means that the publisher did not honestly hold the opinion that was published. The Defamation Act (s 31) provides a defence of ‘honest opinion’ that is similar to the common law fair comment defence. Just as with the common law, the statutory defence can only be defeated if a plaintiff can establish that the opinion was not honestly held by the defendant. The statutory