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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 (ReynoldsVTimes1999).
There are numerous situations which have been found, over the years, to attract qualified privilege. These include:
- the reporting of matters that themselves attract privilege
- the giving of employment references
- complaints to the police about suspected crimes
- 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.