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Privilege

The law recognises that, in some circumstances, the public interest requires that a person should be protected from liability for publishing a defamatory statement, even though the words cannot be proved to be true or defended as honest opinion.  This protection, or ‘privilege’ as it is called, has evolved quite slowly, partly by developments of the common law and partly by statutory enactments.
— Brian Neill and others (eds) Duncan and Neill on Defamation (4th ed, LexisNexis, London, 2015) at [15.01].

The essentials

How does privilege operate?
Sometimes the need for people to be able to speak freely without fear of defamation suit is so crucial for the proper functioning of society that the law affords statements a degree of immunity – even if they’re false and defamatory.  In these situations—which the law calls ‘occasions’—the public good of freedom of expression overrides the private good of reputation.

The cornerstones of privilege are:

  • occasions that attract absolute immunity – ‘absolute privilege’,
  • and occasions that attract qualified (or conditional) immunity – ‘qualified privilege’.

Importantly, it is the occasion on which a statement is made, and not the subject-matter itself, that determines whether the statement is privileged.  For example, when a person gives evidence in Court, they are afforded privilege—absolute privilege in that case—no matter the content of their allegations nor to whom they are directed.  It is the fact of the situation or occasion on which they are speaking which dictates their immunity from defamation suit.

Privilege as a concept is quite easy to understand.  The complications arise in determining its application.  This stems from the fact that while many occasions are privileged by statute, many others are afforded protection solely by common-law recognition.  Further, when it comes to qualified privilege, some occasions have additional conditions and, further still, the evidential burden of establishing certain facts may switch between the defendant and the plaintiff before the Court can conclude whether a defence of privilege succeeds.

But don’t worry – we’ll break it all down.

What is absolute privilege?
As its name dictates, absolute privilege affords absolute immunity from defamation suit.

The two clearest occasions are statements in proceedings in Parliament, and legal proceedings.

As to proceedings in Parliament, most clearly everything said by MPs in the House of Representatives is protected.  With the enactment of the Parliamentary Privilege Act, Parliament has made clear that the privilege is intended to cover virtually all transactions that may occur in the functioning of Parliament’s processes, including:

  • the giving of evidence (and the evidence so given) before the House or a committee,
  • the presentation or submission of a document to the House or a committee,
  • the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee,
  • the formulation, making, or communication of a document, under the House’s or a committee’s authority (and the document so formulated, made, or communicated),
  • and any other proceedings deemed by an enactment to be proceedings in Parliament.

The idea here, is that for Parliament to function without those transacting business being in fear of defamation suit, everything said in the course of parliamentary business is legally immunised and unimpeachable.

As to absolute privilege in legal proceedings, a similar rationale prevails: everything said or done in the course of legal proceedings is immunised from defamation suit.  This allows parties, lawyers, judges, witnesses, juries and court administrative staff to be able to transact the business of the courts, without any overhanging burden of potential defamation suit.  The most common questions people have relating to absolute privilege in the court process (or quasi-court process) relate to the following:

  • First, affidavits sworn or affirmed in the course of actual court proceedings which contain defamatory statements.   If submitted as part of the Court process, whatever is said in the affidavits will be subject to absolute privilege.  That said, this only applies for defamation; if someone lies in an affidavit, then that may amount to perjury – a criminal offence.
  • Second, communications between lawyers in relation to a case which contain defamatory statements.  Provided the statement is made in the proper course of transacting a dispute, then these statements will also likely be subject to absolute privilege.  However, again this only applies for defamation; if a lawyer makes an unduly threatening statement or a statement which causes needless harm to a third party’s reputation, then this may give rise to an actionable breach of legal ethics, for which the lawyer may face sanction.
  • Third, complaints made to professional organisations.  In essence, if the body which has oversight of the complaint has the power to act ‘judicially’ – such as to compel the attendance of people to give evidence and order legally enforceable sanctions, then such complaints will likely be protected by absolute privilege.

For all three matters, in the event absolute privilege does not apply, for whatever reason, then normally the statement will have been made on an occasion of qualified privilege.

A grey areas exists in relation to complaints to Police.  In England, since 2008 such complaints have been held to be subject to absolute privilege.  In New Zealand, courts have previously held such statements to be subject to only qualified privilege, but no Court has yet considered England’s revised position.  We note that Australian courts to consider the issue following England’s change in stance, have maintained that such statements remain subject only to qualified privilege, not absolute privilege.

Finally, some enactments provide for a defence of absolute privilege in relation to certain types of statement.  The most prominent is that under the Employment Relations Act, under which any statements made or information given in the course of raising a personal grievance, or in the course of attempting to resolve the grievance, or in the course of any matter relating to a personal grievance, are absolutely privileged.

The key feature of absolute privilege is that there are no riders or conditions as exist with qualified privilege.  So, even if a person makes a defamatory statement in total bad faith, with knowledge of the statement’s falsity, and for utterly malicious and untoward purposes, then nevertheless they will have an unassailable defence for defamation.

What is qualified privilege?
Qualified privilege is far more nuanced than absolute privilege.  It can cover a wide range of situations.  Some of the key situations that may arise in society that are covered by qualified privilege are those set out in the Defamation Act.   These are normally referred to as occasions of ‘statutory qualified privilege’.  There are also situations which the common law has or may recognise as being occasions of privilege, some of which are commonplace, while others may occur only rarely.

Dealing first with statutory qualified privilege, the following occasions are subject to ‘stronger’ statutory qualified privilege, by which the matter will be protected even if it does not relate to a matter of public interest:

  • fair and accurate reports of court proceedings and the results of court proceedings,
  • fair and accurate reports of parties’ court documents, after they are filed with the court,
  • most statements made in most tribunals and authorities,
  • and oral statements made in local-authority meetings.

In addition, statements made in delayed broadcasts of proceedings in parliament, and fair and accurate reports of proceedings in parliament or of documents communicated during the course of parliamentary business, are subject to statutory ‘qualified immunity’ under the Parliamentary Privilege Act.

Meanwhile, the following occasions are subject to ‘weaker’ statutory qualified privilege, by which, provided the subject-matter is one of public interest, the fair and accurate reports of a number of societal transactions will be protected, including:

  • legislative and judicial proceedings outside New Zealand,
  • meetings of local authorities, where the meetings are open to the media,
  • the proceedings of official international organisations,
  • official inquiries,
  • inquiries of various associations aligned with sporting, trade, business, industry, professional, artistic, scientific, religious or learning interests, etc.,
  • the proceedings at general meetings of registered companies and societies,
  • and meetings of other community interests, where the meetings are open to the public, and are lawfully held for the purpose of promoting or discussing any matter of public interest.

For these ‘weaker’ occasions of statutory qualified privilege, the plaintiff is entitled to request that the defendant publish, in the manner in which the original publication was made, a reasonable letter or statement by way of explanation or contradiction.  If the defendant fails to adequately and reasonably comply with that request, the privilege will not be available.

So to recap, these latter occasions of statutory qualified privilege are ‘weaker’ because, in order for the privilege to be available:

  • the subject-matter reported on must be a matter of public interest,
  • any publications dealing with the subject-matter have to be ‘fair and accurate’,
  • and the defendant must also adequately and reasonably comply with the plaintiff’s request to publish a letter or statement by way of explanation or contradiction.

So that’s statutory qualified privilege.  But as foreshadowed there are other occasions on which statements are made which the common law afford protection.  These occasions are referred to as occasions of ‘common-law qualified privilege’.

Generally speaking, a statement is made on a privileged occasion where the person publishing the statement has a social, moral or legal duty or interest to impart the information (that is, to publish the statement), and the person receiving it has a corresponding duty or interest.  This is known as the ‘duty-interest test’, but has also been described as one involving a ‘community of interests’.

The Courts have recognised that qualified privilege will apply to such situations as:

  • employment reference checks and referee consultations,
  • formal complaints,
  • parent-teacher interviews,
  • criminal or credit inquiries,
  • and other situations where people are disclosed sensitive information on a legitimate ‘need to know’ basis.

One final branch of common-law qualified privilege is what is known as ‘reply to attack’ privilege.  This is essentially a form of reputational self-defence. Essentially, if a defamatory statement is made about somebody, they (or their lawyers or agents) are permitted to make a statement contradicting the original defamatory statement or to call into question the veracity or motives of the person who made the original statement.  If in the process of doing so, the statement in reply is itself of a defamatory nature, the statement will be protected by qualified privilege.

For the defence to be available, a test of proportionality will apply, in that the statement must be relevant or germane to the contents of the original statement, and it must be made to the same audience as that which received the original statement.  For example, if Sally published to nationwide audience that Louis had committed fraud, and Louis was in turn to release a statement that Sally was a liar, then Louis’s statement would likely be subject to qualified privilege.  That said, if Sally published her statement only in a targeted email to three of Louis’s other customers, but Louis meanwhile put out his statement in reply by way of a newspaper ad, then his statement in response will have been disproportionate to the legitimate aim of self-defence and the privilege will not be available.  Similarly, if Sally cast her aspersion as to Louis’s fraud, this time let’s say to a nationwide audience, and in reply Louis not only called Sally a liar but also alleged that Sally was a child molester, again Louis’s reply will have been disproportionate to Sally’s original allegation and his reply is unlikely to be subject to qualified privilege.

While a test of proportionality will apply to the relevance and scope of audience who receives the reply, the tone and repetition of the reply is not held to such restrictions; the person replying has wide scope to express their reply forcefully, and to do so on more than one occasion.

Under what circumstances can qualified privilege be lost?
Aside from those restrictions to to which we referred under ‘weaker’ statutory qualified privilege, any occasion of qualified privilege is open to a wider rebuttal by the plaintiff.  If the statement is found to have been made on any occasion of qualified privilege, the plaintiff can seek to rebut the privilege by proving that the defendant was predominantly motivated to publish the statement for a reason unconnected with the object or purpose of the privilege.  This is what used to be termed ‘express malice’.  In cases that are heard by a jury, it is for the trial judge to determine whether the occasion of publication was subject to qualified privilege, but an issue for the jury as to whether the privilege has been rebutted.

As to what kind of conduct will displace the privilege’s availability, it is useful to consider the law’s objective for protecting a certain occasion of statement, and to then consider whether the defendant published the statement in line with that objective.  Generally speaking, if the plaintiff can show the statement was published in bad faith, then the privilege can be rebutted.

For example, if Sally made complaint to the Police about Louis’s supposedly fraudulent conduct in supplying her with knowingly defective goods at an exorbitant price, the objective of this occasion of privilege would be to allow Sally to make a complaints about Louis’s perceived criminal conduct, without living in fear of Louis suing her for defamation.  Her motivation for making the complaint should be that she wants the Police to investigate Louis and, if appropriate, charge him with a criminal offence.  She might be wrong; the Police might not be the appropriate forum for her to make her complaint, which might perhaps be better directed to a board which oversees tradespersons’ conduct, or perhaps it is only a civil matter which Sally should litigate under the Fair Trading Act or the tort of deceit.  But nevertheless, the law will protect Sally to allow her to raise her complaint.

If, however, Louis could prove that Sally’s underlying motivation for making the complaint was not because she thought Louis had defrauded her, but rather because she was hoping he might waive his service fees, then Sally will have been using the occasion of privilege for a reason unconnected with the reason complaints to Police are privileged.  She will therefore have abused the occasion of privilege and it will not be available to her.

To take another example, let’s suppose Louis and Sally are parents of children attending the same school.  Louis attends a parent-teacher interview and informs the teacher that he is concerned Sally has been abusing her daughter because he saw a big bruise on her arm.  The teacher has a genuine interest in knowing of such allegations concerning the welfare of one of their pupils.  The purpose of this privilege is to allow Louis to report this concern to the teacher, even if it transpires Louis is wrong – the bruises might in fact have been the result of an innocuous incident in the playground, and if Louis had simply asked Sally about it, she would have been able to set the record straight.  Nevertheless, Louis’s statement will be privileged.

If, however, Sally could prove that Louis’s predominant reason for reporting this was not out of concern for Sally’s daughter, but rather to slur Sally’s name among school staff, then Louis will have abused the occasion of privilege which the law otherwise affords the situation.

To take a completely different occasion of privilege, if Sally made an allegation about Louis’s fraudulent conduct in an email to Louis, to which she copied three of Louis’s other customers, the law would afford Louis a privilege to defend himself.  In his reply email, copying in the same people, Louis would be entitled to call into question Sally’s motivations and her truthfulness in making the allegation.

If, however, Sally could prove that Louis knew that indeed he had committed fraud and that his reply was dishonest, then she would be able to show that his predominant motivation for impugning her motivations and truthfulness was not to defend himself, but rather to cover up the truth.  In this situation, Louis’s statement will not be privileged.

These examples might sound straightforward in the abstract, but for all these types of situations the burden of proof is on the plaintiff to prove the defendant’s predominant motivations.  Further, it is not enough just to show that the defendant bore ill will towards the plaintiff or took delight in publishing a defamatory remark where an occasion to make a privileged statement presented itself; the plaintiff has to prove that the defendant’s predominant reason for doing so, was unconnected with the purpose of the privilege.

That said, in almost all cases, if the plaintiff can prove that the defendant knew their allegations were false, or published their allegations with reckless indifference as to whether they were true of false, then this will almost always be sufficient to rebut the privilege.  But mere objective negligent or carelessness by a defendant is not enough; the plaintiff has to prove, at least, the defendant’s subjective disregard for the truth.

Occasionally, knowledge of falsity will not be enough to displace an occasion of privilege.  For example, a Police officer might receive a defamatory statement from a complainant which she or she knows is false, but nevertheless they may be required to record the complaint on the computer system where other Police staff will read it.  Similarly, a secretary might be required to type up minutes and circulate them, even though the secretary knows that some of the items recorded contain outright falsities.

So again, when considering the issue of rebuttal of privilege, the starting point should be to consider the reason why the particular occasion is privileged: what is the purpose for the law giving protection to statements made on a particular occasion?  Then compare this with how the defendant exercised that occasion of privilege.

Masterclass

Legal practice tips
For publishers:

  • If reporting a day in Court (and especially if only one side presents evidence), be sure to end your article with something like: “The case continues,” or “The defence is yet to present its response to the allegations.”  This allows readers to know there is more to come and will help ensure any issue of ‘fairness’ is addressed for a defence of statutory qualified privilege.
  • When submitting a complaint, one should take care that it is sent only to those persons who have a genuine interest in receiving it, otherwise publication to some parties might not attract qualified privilege.  It might be a good issue on which to seek legal advice; a basic ‘need to know’ assessment is usually quite easy to advise upon, but it is something probably best considered by an objective, independent mind.
  • With the advent of RPIC, world-at-large publications are mostly unlikely to have been made on an occasion of qualified privilege.  So where world-at-large publications are concerned, one is better to have the ‘public interest’ and ‘responsibility’ criteria at front of mind, rather than whether there is a reciprocal duty and interest between you and your readers for the publication of whatever you’re writing.
  • If your reputation has been attacked, then you will be entitled to a privileged rebuttal which may be strongly worded and even cast defamatory meanings about the person who attacked you.  However, there are fine margins at play with this defence, so it would be most wise to have your statement vetted by a lawyer prior to publication.

For plaintiffs:

  • As per our tips for honest opinion, if the plaintiff wishes to seek to rebut a defence of qualified privilege, they must file a Section 41 notice within 10 days after the defence is raised.  This is a legislative requirement in the Defamation Act, not the High Court Rules.   This is perhaps even more important than remembering to file a Section 39 notice to rebut the genuineness element of honest opinion, because many cases will in fact turn on whether the plaintiff can rebut a defence of qualified privilege.  Many an indemnifier has probably been notified from a failure to file such notice.  This is definitely a point not to overlook – perhaps almost at gut-wrenching as failing to post security for costs on an appeal. 
  • Despite the wording of the Defamation Act, focusing a rebuttal of qualified privilege on supposed ill-will of the defendant is normally a distraction; one is better to focus on things like reckless disregard for the truth (which, if established, the law treats as knowledge of falsity).
  • As the flip-side to our tip for publishers, when faced with a defence of qualified privilege, one should seek to differentiate the recipients of a publication.  While an email to one particular party might be subject to privilege, it might have been unnecessary for the defendant to have copied the several other people listed.  (It can also be worth investigating whether there were other people who were blind-copied, who perhaps had no proper interest in receiving it).

For defendants:

  • Quite often the particulars a plaintiff pleads in support of a Section 41 notice are little more than assertions of vague allegations: “The defendant published the statement recklessly”.  If such bland assertions are made, it might be worth seeking further particulars or, indeed, applying to strike out the notice.
  • While the issue of a defendant’s ill-will might be a distraction from a proper basis to rebut qualified privilege, plaintiffs are still likely to rely on it.  So, things that might come out during discovery, like flippant or disparaging emails about the plaintiff, sent to a colleague prior to publication, should be avoided.
  • As with points in support of aggravated damages, an unduly hostile approach by a defendant to litigation might also be relied on to support a rebuttal of qualified privilege.

Recommended reading

  • Tertiary Institutes Allied Staff Association Inc v Tahana CA175/96, 14 August 1997, [1998] 1 NZLR 41 (Court of Appeal)

For application of absolute privilege to complaints made to regulatory bodies, including discussion as to the interplay between common-law absolute privilege and the Defamation Act.  The whole judgment should be read.

  • Ferrymead Tavern v Christchurch Press HC Christchurch CP184/98, 11 August 1999, [1999] NZAR 529, (1999) 13 PRNZ 616 (High Court)

For application of statutory qualified privilege concerning media reports of statements by Police.  The whole judgment should be read.

For the seminal case on common-law qualified privilege.  The speech of Lord Atkinson is that which is cited invariably by New Zealand courts for the test of what amounts to a privileged occasion, while his Lordship’s comments regarding the different roles between the trial judge and jury—as to the establishment of a privilege occasion and its rebuttal—also remain good law: see pages 332–334.

For a comprehensive articulation of the principles of reply-to-attack qualified privilege: see paragraphs [9]–[17].  This case involved a complicated set of facts, but the application of the defence is also worth consulting, especially because the decision addresses many of the legal quirks and distinctions that may arise in cases involving this brand of qualified privilege: see paragraphs [20]–[88].

For the leading authority on rebuttal of qualified privilege: see the majority decision at [25]–[30], and the minority decision at [121]–[126].

Along with truth and honest opinion, that’s now the ‘main’ defences to defamation unpacked.  We now move to the ‘new’ defence recognised by the Court of Appeal in 2018: Responsible Public Interest Communication.