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Not so qualified?
By Steven | January 22, 2025
The defence of common law qualified privilege applies (to cut short a lot of legal jargon) when someone tells someone something in good faith, believing they need to know it. Think: telling the police that the neighbour is running methlab or dobbing in a colleague to the boss for stealing. If you honestly believe it’s true, and you only tell the person or people who need to know it, then you’re likely to have a defence to a defamation claim if it turns out you’re wrong.
But what if a lot of people need to know? Can you still use the defence?
One problem is that if you’re telling a lot of people, you may be publishing it generally, in which case, you’re in the territory of the new defence of “responsible communication in the public interest”. You’d have to show that publishing it was responsible, and that it was on a matter of public interest.
Maybe you can’t show one of those things. Might you still be able to use qualified privilege, on the grounds that the large group you sent it to all needed to know?
A recent case (Bains v Singh [2024] CA 581) gives the answer: yes. A message was posted on a Facebook page with 10,000 followers. The person it was about sued for defamation. Crucially, the followers were members of an ethnic group and had a common interest in their religious institutions and leaders, and the author frequently wrote about those things.
The Court of Appeal held that the new public interest defence does not gazump the ability to argue qualified privilege when the audience is quite large. In the past, this has stretched fairly far, including publication in a business newspaper, and it seems that this is still good law. But you’ll still have to argue that the audience has a proper interest in receiving the information.
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