It is often the case that my clients ask this very question. Unfortunately, it is common for perpetrators to be motivated by malice when publishing defamatory material and proof of a malicious intent serves to render useless some of the defences that could be relied upon by a defendant in defamation proceedings.
How to prove a malicious intent
Malice is not a precise term and can include aspects of improper motive, ill will, knowledge of the falsity of the publication and reckless indifference to the truth or falsity. Examples of improper motive include:
- publication with an intent to cause harm to the plaintiff;
- attempting to obtain some progress or advantage through the publication, where the advantage is not connected with a privileged occasion; and
- the expression of an opinion that is not a genuine or honest opinion of the person making the statement.
Malice may be proven through the use of both intrinsic evidence inferred from the publication itself, and any extrinsic evidence (outside of the publication) that may demonstrate the defendant’s state of mind.
Defence of qualified privilege
The defence of qualified privilege under section 30 of the Defamation Act (Qld) 2005 (the Act) may be used by a defendant if they can prove the following elements:
- the recipient of the material has an interest or apparent interest in having information on some subject;
- the matter is published to the recipient in the course of giving to the recipient information on that subject; and
- the conduct of the defendant in publishing that matter is reasonable in the circumstances.
This defence is defeated under the Act if the plaintiff can prove that the publication of the defamatory material was actuated by malice. In general, this would require the plaintiff to prove that the publication had been a wrongful act, done intentionally or in bad faith and without a lawful excuse. It is important to note that merely demonstrating that the defamatory material was published for a reward does not defeat section 30 of the Act.
In Roberts v Bass (2002) 194 ALR 161, the High Court pointed out that in considering whether a plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed, but that it was the dominant reason for the publication of defamatory material. Therefore the presence of malice has to be a driving factor for the publication of the defamatory material.
Defence of honest opinion
The defence of honest opinion under section 31 of the Act is defeated if the plaintiff can prove that:
- the opinion was not honestly held by the defendant at the time the defamatory material was published; or
- the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
- the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
When proving that the opinion was not honestly held by the defendant, the defendant’s state of mind at the time of the publication is a relevant indicator. The defendant’s state of mind may be evidenced by factors such as:
- reckless indifference to the truth or falsity of the publication;
- a leap to a conclusion by the defendant without adequate evidence to justify such a leap; and
- a failure to recognise the significance of evidence that would reasonably cast doubt upon the defendant’s conclusions.
Defences defeated by dishonesty and other reasons
The following defences may also be defeated under the Act if the plaintiff proves that the defamatory material was not published honestly for the information of the public or the advancement of education:
- defence for publication of public documents – section 28 of the Act; and
- defence of fair report of proceedings of public concern – section 29 of the Act.
Overall, malicious intent has a significant impact on defamation proceedings, in that the majority of the defences under the Act are defeated if the plaintiff can prove that:
- the publication of the defamatory material was actuated by malice; or
- the defamatory material was not published honestly for the information of the public or the advancement of education.
If you any questions regarding defamation, please don’t hesitate to contact me.