Responding to the financial abuse of older people - Loddon ...

(d) whether the opinion was honestly held by the defendant at the time of publication.
The Uniform Acts also provide for a defence in the circumstances already referred
to where the material was published by the defendant but the opinion was that of an
employee or agent of the defendant, unless the plaintiff establishes that the defendant
did not believe that the opinion was honestly held by the employee or agent at the
time of publication. This is an expansion of the defence as it would operate under the
common law where a defendant publisher would have a defence of fair comment if the
requirements of the defence are otherwise satisfied and a servant or agent genuinely held
the opinion in question.
In relation to the publication by the defendant of the comment of a stranger – a person
other than the defendant or an employee or agent of the defendant – the Uniform Acts
provide a defence, unless the plaintiff demonstrates that the defendant had reasonable
grounds to believe that the opinion was not honestly held by the commentator at the
time of publication. This is probably an expansion of the common law position where
there is authority to suggest that the defendant is effectively dependent on the state of
mind of the commentator. There is, however, some doubt as to the common law position
on this question.
9.8 Qualified privilege
Sometimes, it may be necessary to make defamatory statements in order to properly
discharge one’s legal, social or moral obligations or to protect one’s own legitimate
interests. More specifically, the justification is the ‘public interest in permitting people to
communicate frankly and freely with one another about matters in respect of which the
law recognises that they have a duty to perform or an interest to protect’. 108
On such occasions, the law confers a limited form of immunity generally referred to as
the defence of qualified privilege. Qualified privilege is distinguishable from absolute
privilege (discussed in detail below) which renders a person absolutely immune from
liability for defamation irrespective of the motive.
9.9 Qualified privilege: the test
There are no fixed categories of occasions in which qualified privilege may arise as the
circumstances in which the law recognises such occasions are difficult to identify and
can ‘never be catalogued or rendered exact’. 109
However, at common law, the general test to be applied in determining whether a
particular occasion is privileged is whether the occasion is one where the person who
made the communication had an interest or a duty, ‘legal, social, or moral’, to make
it to the person to whom it was made, and the person to whom it was made had a
corresponding interest or duty to receive it. Where the occasion of qualified privilege
depends upon the publisher’s duty and the recipient’s interest, this reciprocity of duty
and interest is essential. 110
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