Define: Qualified Privilege

Qualified privilege is a legal defence that protects individuals or entities from liability for making statements or disclosures that would otherwise be considered defamatory or actionable in certain circumstances. It applies when the person making the statement has a legitimate interest or duty to communicate the information and the recipient has a corresponding interest or right to receive it. Qualified privilege typically arises in situations where there is a public or social interest in the communication of information, such as in reporting news, providing references, or making statements in the course of official duties. However, this privilege is not absolute and can be lost if the statement is made with malice or with knowledge of its falsity. Qualified privilege provides a balance between the right to free expression and the protection of reputation, encouraging open communication while deterring abuse of the privilege.

Qualified privilege is a defence to an action in Defamation, provided that the defamatory imputation was not made maliciously. The test for whether circumstances attract qualified privilege has been developed by the courts; it may be stated as whether there had been a duty to publish the material to the intended recipients and whether they had had an interest in receiving it, taking into account all the circumstances of the publication including the nature, status and source of the material (Reynolds v Times 1999).

There are numerous situations which have been found, over the years, to attract qualified privilege. These include:

1. the reporting of matters that themselves attract privilege
2. the giving of employment references
3. complaints to the police about suspected crimes
4. reporting of the conclusions of adjudication processes

In Reynolds, the Times argued that political reporting should, as a matter of course, attract qualified privilege, subject only to a test of reasonable care. This, in essence, is the position in Australia after the decision in Lange v Australian Broadcasting Corporation.

If the court decides that publications was on an occasion that attracted qualified privilege, the claimant will have to show that the defendant acted with malice. This is generally quite difficult in practice, so in practice, it is often a defence to an action in defamation to show that the occasional was privileged.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 29th March, 2024.