In brief - High Court rules regarding countering attacks in the public forum
Where a public attack is made on a party’s reputation or character, the party is entitled to publicly defend itself with comments that may be considered defamatory were it not for the concept of privilege. However, the scope of the qualified privilege defence is not absolute.
High Court considers scope of the qualified privilege defence
Late last year, the High Court of Australia released its judgment in the case of Harbour Radio Pty Ltd v Trad  HCA 44. The case was an appeal lodged by 2GB Radio in relation to proceedings contesting the nature of on-air comments it had directed at Mr Kaiser Trad following the Cronulla riots of 2005.
In defence of the remarks it had made about Mr Trad on air, 2GB had relied on the defence of qualified privilege. The case gave the High Court occasion to consider the scope of that defence, and to provide guidance as to what factors will automatically negate the defence.
Plaintiff puts part of blame for Cronulla riots on 2GB, which retaliates
The case arose out of the well-publicised Cronulla riots which occurred in 2005. As McLellan CJ, the trial judge in the Supreme Court of NSW, observed, those riots "were perceived by many people as a confrontation between adherents to the Muslim faith and persons of Caucasian heritage".
Some days after the riots, at a "peace rally" in Hyde Park, Sydney, Mr Trad addressed the crowds gathered there. In doing so, he attempted to place part of the blame for the riots on 2GB and its presenters.
The following morning, Mr Jason Morrison, a presenter on 2GB, broadcasted an 11-minute diatribe about Mr Trad, in which Mr Morrison referred to Mr Trad as a "disgraceful" and "dangerous individual", and accused him of being "widely perceived as a pest".
Mr Trad was upset and offended by Mr Morrison's comments and he decided to commence proceedings in the Supreme Court of NSW, alleging that the various imputations made about him on air by Mr Morrison were defamatory.
The defence of "qualified privilege" can be used only in limited circumstances
2GB chose to defend the proceedings commenced by Mr Trad by relying on the defence of "qualified privilege". Qualified privilege is a defence to the publication of defamatory statements which may be false, but which warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely with the prospect of litigation removed.
Essentially, by using the qualified privilege defence, a person defamed may make contrary comments that might otherwise themselves be found to be defamatory, but for the operation of the privilege.
At common law, the defence is available if the statement is made in the performance of any legal, moral or social duty or interest, to a person having a corresponding duty or interest to receive it. A common example is that of a current or former employer providing a character or professional reference for an employee (or former employee) at the request of a person proposing to make a job offer to that employee.
2GB successfully defends allegations in first instance hearing before Supreme Court
Mr Trad alleged that the following eight imputations conveyed in the 2GB broadcast about the riots were defamatory against him:
(a) He had stirred up hatred against a 2GB reporter, which caused the reporter to have concerns about his own personal safety;
(b) He incites people to commit acts of violence;
(c) He incites people to have racist attitudes;
(d) He is a dangerous individual;
(g) He is a disgraceful individual;
(h) He is widely perceived as a pest;
(j) He deliberately gives out misinformation about the Islamic community; and
(k) He attacks those people who once gave him a privileged position.
In response, 2GB argued that they had a right to reply to Mr Trad’s original public attack given the circumstances in which it was made. Mr Trad countered with an argument that the privilege was defeated by the existence of "malice" in the broadcaster’s attack.
2GB's defence of qualified privilege was successful at first instance. Chief Justice McClellan found that some of the imputations about Mr Trad, who had been widely known to make controversial comments in regard to the treatment of homosexuals and punishment for women who are the victims of rape, were actually true, and those that were not failed to put his character into further disrepute.
Mr Trad was not content with this outcome and he appealed to the NSW Court of Appeal, where he was partially successful. The Court of Appeal upheld 2GB's defence of qualified privilege in respect of all of the imputations listed above, aside from those at (c), (h) and (k).
High Court finds that scope of qualified privilege defence is not absolute
2GB appealed to the High Court, seeking to have the judgment of Chief Justice McClellan reinstated.
In considering the appeal, the High Court made it clear from the outset that the defence of qualified privilege is not absolute and there are limits to a defence based, as it was in this case, on a right of attack. The High Court found that a successful defence of qualified privilege relies on three key factors:
• The existence of a duty or interest to reply in the case of an attack. The High Court found that the law generally requires reciprocity of duty and interest between the voice and the audience. In this case, the duty and interest existed between 2GB and its listeners. The High Court found that Mr Morrison had a duty and an interest to vindicate his and the radio station’s reputation in the fact of attack by Mr Trad and his listeners had an interest in hearing the response.
• A sufficient connection between the subject matter of the attack and the domain in which it is delivered. Put simply, the response must be limited to responding to the initial attack. Any response must relate directly to the initial attack and cannot be made to serve an ulterior motive or a purpose other than the need for the victim to vindicate themselves. The High Court held that the "counter-accusations were directly relevant to what Mr Trad had leveled at 2GB and it was entitled to reply in this way".
• An absence of malice. The response must be made in good faith for the purpose of vindicating the reputation of the person being attacked.
By majority, the High Court confirmed that the defence was applicable to six of the eight imputations relied on by Mr Trad. However, a number of imputations were remitted to the Court of Appeal for consideration of the "truth" defence advanced by 2GB and the assessment of damages. The final outcome of the case should be known later in 2013.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.