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

For the purposes of section 30(1), a recipient has an apparent interest in having
information on some subject if, at the time of the publication, the defendant believes on
reasonable grounds that the recipient has that interest (section 30(2)). In determining
whether the conduct of the defendant is reasonable, a court may take into account
(section 30(3)):
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance
of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation conveyed by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions,
allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter
published to be published expeditiously; and
(f) the nature of the business environment in which the defendant operates; and
(g) the sources of the information in the matter published and the integrity
of those sources; and
(h) whether the matter published contained the substance of the person’s side
of the story and, if not, whether a reasonable attempt was made by the defendant
to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
As at common law, the defence will be defeated if the plaintiff proves that the publication
was actuated by malice (section 30(4)).
9.12 Conclusion
An allegation of abuse may form the basis of an action in defamation. This is particularly
so given the broad meaning of ‘publication’ (including all forms of communication)
and the objective test that applies. There are a number of defences available to a
financial institution of which, with regard to the topic at hand and the banker–customer
relationship, the defence of ‘qualified privilege’ is particularly pertinent. To minimise
the risk of a defamation action succeeding, a financial institution should use its best
endeavors to ensure that any abuse it plans to report is substantially true and based on
proper material and information, bearing in mind that, ultimately, a court will decide
this by reference to objective standards.
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