New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 19 April 2015
Broadening Horizons of Qualified Privilege:
Desirability of One Law For All
Prof. Dr. Mohd Altaf Hussain Ahangar*
Qualified privilege as a defence to defamation action has its roots in the
common law. However, the scope of this defence has been
amplified in recent
years through judicial activism and legislative measures.
This paper endeavors to highlight the common law rules in relation to
qualified privilege and its application in England and Malaysia.
discussion will follow with respect to the broadening horizons of this defence
in England, Australia, New Zealand and
Malaysia. The supplementation of common
law principles by statutory provisions in these countries will then be
considered. In the
end, the paper will conclude that in a secular matter like
defamation, there should be no place for diverse laws in different countries
the time is opportune to have one law for all in the contemporary global
ii. QUALIFIED PRIVILEGE AT COMMON LAW
Sometimes it is necessary for a person to make statements in order to discharge one’s legal or moral obligations or to protect one’s own legitimate interests.1
On such occasions, common law confers a limited form of immunity from legal
action on the maker of a defamatory statement. The immunity
or defence so
created is known as qualified privilege. This defence attaches more importance
to the occasion or the circumstances
of the publication than to the defamatory
statement itself and is available despite the fact that the statement made on
or in such circumstances turns out to be false.2
However, the defendant should not be motivated by malice and must honestly
believe in the truth of the defamatory statement.3 With regard to
privileged occasion, Lord Atkinson in Adam v Ward4
* Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.
1 Horrocks v Lowe  AC 135, 149.
4  AC 309, 334.
A privileged occasion is, in reference to qualified privilege, an occasion
where the person who makes a communication has an interest
or duty, legal,
social or moral, to make it to the person to whom it is made, and the person to
whom it is made has a corresponding
interest or duty to receive it. This
reciprocity is essential.
Thus, the duty in question need not be legal but may be social or moral.5
Likewise the interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or insubstantial. So long as interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule.6
It is necessary that the interest or duty in question must actually exist; it
is generally not enough that defendant honestly believes,
even on reasonable
grounds, in its existence.7 Reciprocity of duty or interest between
the maker and recipient of the statement is a pre-requisite. If either is
lacking, then the
occasion on which the communication is made is not
The above quoted requirements for a defence of qualified privilege have been
applied in infinite cases not only in England but in
most countries of the
world. In Malaysia, we have a long line of cases in which this defence has been
applied. In Jenni Ibrahim9 the defendant was removed from the
post of managing director of a medical centre and was replaced by the plaintiff.
made an allegation of misappropriation of money at the medical
centre against the plaintiff and wrote about it to Chief Police Officer.
the same allegation in a letter to the Secretary of Medical Center and sent
copies to the Director, Social Welfare and Registrar,
Societies of Malaysia. The
plaintiff filed suit for defamation and claimed damages for embarrassment,
distress and humiliation. Rejecting
the defence of qualified privilege, Ajaib
Singh J observed:
There was no common and corresponding duty or interest between the defendant
and the several persons who received and read the libelous
Recently, the High Court of Melaka had an opportunity to deal with the
qualified privilege defence in Abu Samah.11 In this case, in
June 1996, the defendant appointed the plaintiff to carry out demolition and
construction work in the plaintiff’s
house. On August 7, 1996, the
defendant was informed
5 Staurt v Bell  2 QB 341, 350.
6 Howe v Lees  HCA 67; (1910) 11 CLR 361, 377.
7 Beech v Freeson  1 QB 14, 24-25.
8 Watt v Longsdon  1 KB 130.
9 Dr. Jenni Ibrahim v S. Pakianathan  2MLJ 154.
10 Ibid, 155; See also, Chong Siew Chiang v Chua Ching Geh  4 CLJ 1839: Doree
Industries (M) Sdn. Bhd. v Sri Ram & Co  1 MLJ 532.
11 Abu Samah bin Omar v Zainal bin Montal  5 MLJ 377.
by his wife that some money and jewelry in the house were found missing. On
the same date, the defendant lodged police report suspecting
one of the
plaintiff’s three workers. The plaintiff sued the defendant for libel on
the basis of that police report. The trial
court allowed the plaintiff’s
claim and observed that ‘in making the police report, the defendant could
not rely on the
defence of qualified privilege, although there was no malice on
the part of the defendant.’ On appeal, the court allowed the
qualified privilege. Low Hop Bing J observed:
The learned magistrate has erred in failing to apply the defense of qualified
privilege, as the plaintiff was unable to adduce any
evidence of malice on the
part of the defendant.12
The learned judge rightly relied on following observation of KN Segara in
Hoe Thean Sun:13
The law clearly recognized that all statements made in police report are
statements made on a privileged occasion, and the privilege
is qualified, though
not absolute...The primary purpose of police report is to set in motion the
investigation of an offence and
bring to justice the offender and perpetrators,
if any, at the conclusion of the investigation by the appropriate
The other recent case is Puneet Kumar.15 In this case the
plaintiff brought an action on the basis that the defendant while wrongly
terminating his services as a visiting
consultant used certain words in the
terminating letter which were defamatory to his status as a specialist. The
defendant, as executive
director, had sent copies of the termination letter to
the chairman, chief executive, medical director and administrator of the
hospital. The defendant did not dispute the authenticity of the
disputed letter, but argued that the termination was justified as
plaintiff’s actions during an operation were a total failure of teamwork,
and pleaded the defence of qualified privilege.
Allowing the defence,
Kamalanathan Ratnam J, while referring to, mostly local, various cases, adopted
the following observation of
Lord Diplock in
Indifference to the truth of what a person publishes is not to be equated
with carelessness, impulsiveness or irrationality in arriving
at a positive
belief that it is true, the freedom of speech protected by the law of qualified
privilege may be availed of by all
sorts and conditions of men. In affording to
them immunity from suit if they have acted in good faith in compliance with a
12 Ibid, 383.
13 Hoe Thean Sun v Lim Tee Keng  3 MLJ 138.
14 Ibid, 142.
15 Puneet Kumar v Medical Centre Johore Sdn bhd.  5 MLJ 573.
16 Horrocks, supra n 1.
or moral duty or in protection of a legitimate interest the law must take
them as it finds them. In ordinary life, it is rare indeed
for people to form
their beliefs by a process of logical deduction from facts ascertained by a
rigorous search for all available
evidence and a judicious assessment of, its
probative value. In greater or lesser degree according to their temperaments,
their intelligence, they are swayed by prejudice, rely on
intuition instead of reasoning, leap to conclusions on inadequate evidence
fail to recognize the cogency of material which might cast doubt on the validity
of the conclusions they reach. But despite the imperfection of the mental
process by which the belief is arrived at it may still be ‘honest’,
is a positive belief that the conclusions they have reached are true.
The law demands no more.17
iii. THE BROADENING HORIZONS
At common law, qualified privilege was intended to serve as a defence for a
person in relation to communication to a limited number
of persons, i.e.,
persons who had a social, legal or moral duty to receive the communication. In
recent years, this defence has been
extended even to communications to a nation
or to the whole world through mass media. The four landmark cases in four
deserve a detailed discussion. They are Lange v
ABC18 in Australia, Lange v Atkinson19 in New
Zealand, Reynolds20 in England and Dato Seri Anwar
Ibrahim21 in Malaysia.
In the Australian case Lange v ABC22, David Lange sued
Australian Broadcasting Company in respect of a broadcast that allegedly cast
aspersions on plaintiff’s conduct,
performance and fitness for office as a
member of New Zealand’s Parliament and as its Prime Minister. The defence
common law qualified privilege. The High Court of Australia
allowed an expanded defence of qualified privilege in relation to political
discussion. All the seven judges in one voice declared:
Each member of Australian community has an interest in disseminating and
receiving information, opinions and arguments concerning
political matters that affect the people of Australia. The duty to disseminate
such information is simply the correlative
of the interest in receiving it. The
common convenience and welfare of Australian society are advanced
17 Ibid, 150.
18 Lange v Australian Broadcasting Corporation  HCA 25; (1997) 145 ALR 96.
19 Lange v Atkinson  NZCA 95;  3 NZLR 385.
20 Reynolds v Times Newspapers Ltd.  UKHL 45;  4 All ER 609.
21 Dato Seri Anwar Ibrahim v Dato Seri Dr Mahathir Bin Mohamad  4 MLJ 58.
22 Lange v ABC, supra n 18.
discussion - the giving and receiving of information - about government and
political matters. The interest that each member of the
Australian community has
in such a discussion extends the categories of qualified
One fact that is obvious from the observation is that the common convenience
and welfare of modern society24 demands the broadening of the
horizons of the defence of qualified privilege. In this regard the court drew
the distinction between
defamatory statements regarding political or
governmental matters which were published to a limited number of recipients and
which were communicated to a large audience. In first type of defamation,
once it is established that the matter complained of has
the necessary political
or governmental flavor, the publication is made an occasion of qualified
privilege. However, in second type
of defamation, it is necessary for the
defendant to prove that his or her conduct in publishing the material complained
of was reasonable.25 With regard to the malice requirement, the
court opined that the concept of malice was narrowed by eliminating from it
pertaining to defendant’s mental state which he or she must
establish under the rubric of reasonableness.26
Prior to the Australian Lange v ABC case, the High Court of New
Zealand had dealt with the issue of unlimited communication in Lange v
Atkinson.27 This case arose from a defamation action by former
New Zealand Prime Minister David Lange against the writer and publisher of an
in the New Zealand magazine North and South which was critical of
the plaintiff’s performance as a politician. Elais J allowed the defence
and observed that ‘whilst
a “stand- alone” defence of
political expression was unknown to the law of New Zealand, the alleged facts
it was claimed could give rise to an occasion of qualified
privilege.28 On appeal, the Court of Appeal did not disturb Elias
J’s judgment. While rejecting the reasonableness requirement propounded
the Australian Lange v ABC, it made following observations:
(1) The defence of qualified privilege may be available in respect of
statement which is published generally.
(2) The nature of New Zealand’s democracy means that the wider polity
may have a proper interest in respect of generally published
directly concern the functioning of representative and
23 Ibid, 115.
24 Ibid, 116.
25 Ibid, 116 -117.
26 Ibid, 117.
27 Lange v Atkinson, supra n 19.
28 Ibid, 48.
responsible government, including statements about the performance or
possible future performance of specific individuals in elected
(3) In particular, a proper interest does not exist in respect of statements
made about the actions and qualities of those currently
or formerly elected to
Parliament and those with immediate aspirations to such office, so far as those
actions and qualities directly
affect or affected their capacity (including
their personal ability and willingness) to meet their public
(4) The determination of the matters which bear on that capacity will depend
on a consideration of what is properly a matter of public
concern rather than of
(5) The width of the identified public concern justifies the extent of the
New dimensions were added to the defence of qualified privilege in England by Reynolds.30 In this case, the plaintiff was a former Taoiseach (Prime Minister) of the Irish Republic who sued the Sunday Times in respect of an alleged libel in its British mainland edition, concerning the circumstances of his resignation as leader of the Fianna Fail/Labour Coalition in 1994. He alleged that the article meant that he had allegedly misled the Dail and his cabinet colleagues over the handling of a controversial extradition case by the then Attorney General, whom he wished to appoint the President of High Court. At the Court of First Iinstance, and in the Court of Appeal, the publication of the article was held not privileged. Further, both the courts rejected any wide qualified privilege at common law for political speech. The Court of Appeal,31 however, held that, in addition to the duty and interest test, a circumstantial test had to be satisfied: ‘where the nature, status and source of the material and the circumstances of the publication are such that the publication should be in the public interest, it would be protected in the absence of proof of malice.’32 In response to defendant’s appeal, the House of Lords by majority rejected the plea of privilege because the article had omitted all reference to what the claimant had said in the Dail by way of explanation.33
It rejected the ‘circumstantial test’ propounded by the Court of
Appeal.34 The starting point for Lord Nicholas was ‘freedom of
expression’. According to his Lordship, freedom to disseminate and
receive information on political
29 Ibid, 61.
30 Reynolds v Times Newspapers Ltd (1999) supra n 20.
31 Reynolds v Times Newspaper Ltd  EWCA Civ 1172;  3 WLR 862 at 899.
32 Reynolds v Times Newspapers Ltd (1999) supra n 20 at p 627.
33 Ibid, 619.
34 Ibid, 621-622.
matters was essential to the proper functioning of the system of parliamentary democracy. The media played an important role in this process. Thus, without a free press, freedom of expression would be hollow concept. However, the protection of reputation was also an important public good.35 According to his Lordship, the crux of the appeal therefore lay in identifying the restrictions which are fairly and reasonably necessary in a democracy for the protection of reputation. Consequently, Lord Nicholas set out a non-exhaustive list of circumstances which would be relevant to the question of whether the media should be regarded as having a duty to convey information and the public a corresponding interest in receiving it. However, he mentioned that the weight to be given to these and any other relevant factors will vary from case to case.36
The outlined ten factors were:
1. The seriousness of the allegation. The more serious the charge, the more
the public is misinformed and the individual harmed,
if the allegation is not
2. The nature of the information, and the extent to which the subject-
matter is a matter of public concern.
3. The source of information. Some informants have no direct knowledge of
the events. Some have their own axes to grind, or are
being paid for their
4. The steps taken to verify the information.
5. The status of information. The allegation may have already been the
subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have information
others do not possess or have not disclosed. An approach
to the claimant will
not always be necessary.
8. Whether the article contained the gist of the claimant’s side of
9. The tone of the article. A newspaper can raise queries or call for an
investigation. It need not adopt allegations as statements
10. The circumstances of the publication, including the
35 Ibid, 622.
36 Ibid, 626.
It is in the backdrop of the above three cases that, in Malaysia, the defence of qualified privilege in relation to communication to the public at large was in issue in the case of Dato Seri Anwar Ibrahim.38 In this case, the plaintiff, the former Deputy Prime Minister brought an action in defamation against the defendant who at the material time was the Prime Minister and the Home Minister of Malaysia. The plaintiff, who was dismissed from various governmental and political positions, claimed that on 22 August
1998 the defendant falsely and maliciously spoke and published to national
and international journalists about the plaintiff and accused
the plaintiff of
homosexuality. The defendant argued, inter alia, the defence of qualified
privilege in view of an admission of sodomy
by two persons earlier before the
court. The defendant further contended that his statement was based on matters
that were already
of public knowledge and on information related to him by
police. He argued that as Prime Minister of the country, he had a duty to
public who elected him and to his party to explain reasons for the
plaintiff’s dismissal from various positions. The defendant
contended that he was badgered by various sources for explanations on the
plaintiff’s dismissal from his various offices
and that the alleged
defamatory response he made was a direct response to a question posed by a
member of the press at a press conference.39
Allowing the defence of qualified privilege, the High Court, while referring
to decisions in various cases from different jurisdictions,
focused on three
tests outlined by the Court of Appeal in Reynolds. Kamalanathan Ratlam J
The defendant was duty bound to have disclosed the information concerning his
ex-deputy. As the chief executive of the government,
the defendant was under a
legal, moral and social duty to inform the nation of the matters concerning the
words were uttered with a view to repelling
the charges [charges included of a political conspiracy of the highest level]
the plaintiff, they were made bona fide and were relevant to the
accusations made by the plaintiff. The defendant’s words were
spoken on an
occasion of qualified privilege. The defendant spoke of the words with a mind
devoid of malice and has also satisfied
the tests set out in Reynolds v Times
Newspapers Ltd  EWCA Civ 1172;  3 WLR 862 for assessing whether the defence of
qualified privilege applies.40
Further, the court was highly critical of plaintiff’s case. Treating it
as an abuse of judicial process, the learned judge further
38 Dato Seri Anwar Ibrahim v Dato Seri Dr Mahathir Bin Mohamad, supra n 21.
39 Ibid, 64-68.
40 Ibid, 69-72. The plaintiff ’s two appeals to Court of Appeal and
Federal Court were unsuccessful. See  1 MLJ 305 and  2 MLJ
The ‘primus inter pares’ of the country and his cabinet
colleagues must be protected from frivolous, vexatious and abusive
Otherwise, rather than running the country towards achieving peace and
prosperity for its citizens, the officials of the government
will forever be
looking over their shoulders for fear of being dragged to court with an unwanted
but heralded suit. Whilst no one
is above the law, yet the court must be ever
vigilant, never indolent, ever watchful, never fearful of its duty to check on
machinations of parties or persons motivated with the express
desire of dragging top officials who run the country, to court with
cause nothing more than embarrassment to such officials. The plaintiff’s
claim was one that was frivolous, vexatious
and an abuse of the process of the
court and should therefore be struck out.41
After this judgment came House of Lords’ observation in Reynolds.
We already know that the House of Lords rejected the three test formula laid
down by the Court of Appeal in this case. Even if the
House of Lords decision in
Reynolds had been referred to in Dato Seri Anwar Ibrahim, the
outcome could not have been different. The insistence of the House of Lords to
go back to the traditional twofold test of duty
and interest would not have
mattered because the devised test was sufficiently flexible to embrace,
depending on the occasion and
the particular circumstances, a qualified
privilege in respect of political speech published at large. The essential
had to be asked in any case was whether the public was entitled to
know the particular information.
This required consideration of many matters including, but not limited to,
the nature, source, tone and character of the report, any
steps taken to verify
the information, the urgency of the matter, whether the claimant had been given
the chance to respond, and
the timing of the publication. One can hardly be
critical of judgment in Dato Seri Anwar Ibrahim because the judgment
satifies all the criteria outlined in Reynolds. However, one
critic42 of the judgment argued that the defendant had no legal duty
to communicate to journalists and so there was no question of relying
defence of qualified privilege as laid down in Reynolds. The critic,
however, does ignore two facts. Firstly, Reynolds does not speak about a
legal duty only but also of social and moral duties. Secondly, legal matters and
political matters are not
same. Both have to be tackled on their own terms. The
plaintiff in this case was not an ordinary person. He had immense political
influence. Simply dismissing him from the post of Deputy Prime Minister would
not have been acceptable to the common man of this
country. So, all the
communications made by the defendant need to be viewed also from the political
dimensions involved in this case.
41 Ibid, 72.
42 See Abdul Aziz Bari, ‘Dato Seri Anwar Ibrahim v Dato Dr Seri Mahathir bin Mohamad:
The Constitutional Dimensions’  4 MLJ cxc, p cxciii.
iv. DIVERSE STATUTORY DEFENCES OF QUALIFIED PRIVILEGE
From the above discussion it is evident that the common law defence of
qualified privilege has been immeasurably broadened in relation
discussions and media publications. But there is a need to realize that
defamation is a secular issue devoid overall
of religious, cultural, linguistic
and other considerations. It is a human issue. So by now there should be a
uniform global law
on this issue, which includes the defence of qualified
privilege. Unfortunately it is not so. Most countries have legislation, which
differs in substance but is the same in spirit. In addition to the common law
principles discussed above, in Malaysia, we have Section
12 of Defamation Act
1957 which extends the defence of qualified privilege to the following
publications in a newspaper:
A fair and accurate report of proceedings –
1. of the legislature of any part of the Commonwealth other than in
2. of an international organization of which Malaysia or the Government
therefore is a member;
3. of an international conference to which the Government sends a
4. before any court exercising jurisdiction throughout any part of the
Commonwealth outside Malaysia under any written law in force
in Malaysia or
under any Act of the United Kingdom Parliament; and
5. of a body or person appointed to hold public enquiry in the Government
of Malaysia or any State thereof or by the legislature
of any part of the
Commonwealth outside Malaysia.
6. a fair and accurate copy of or extract from any register kept in
pursuance of any written law in force in Malaysia or document
which is open to
inspection by the public or which members of the public are entitled on payment
of a fee to a copy.
7. a notice, advertisement or report issued or published by or on the
authority of any court within Malaysia or any Judge or officer
of such court or
by any public officer or receiver or trustee acting in accordance with the
requirements of any written law.
This set of publications is at variance with publications recognized under
English Defamation Act 1996. Under this Act, the statements
protected by the
defence of qualified privilege have been divided into two groups:
having qualified privilege without explanation or contradiction, and
statements privileged subject to explanation or contradiction.
peculiarity of the English statute is that it accords protection to a number of
publications in newspaper at global levels
rather than confining it to
Much diversity is visible in Australia, where all the eight states have their
own defamation regime. However, in order to ensure brevity
reference will be made only to the statutes of Queensland, Tasmania and New
South Wales. Queensland and Tasmania are
not governed by common law in relation
to qualified privilege but by two codes; the Defamation Act 1889 and the
Defamation Act 1957
respectively. In relation to qualified privilege both codes
are in substance identical. Section 16(1) of both codes provides eight
situations under which the defence of qualified privilege can be taken.
It is lawful excuse for the publication of defamatory matter if the
publication is made in good faith-
(a) in the course of a censure passed by a person on the conduct of another
person over whom he has lawful authority, being conduct
in matters to which that
lawful authority related;
(b) for the purpose of seeking remedy of redress for a private wrong or
grievance or a public wrong or grievance from a person who
has, or is reasonably
believed by the person who makes the publication to have, authority over the
person defamed with respect to
the subject matter of the wrong or
(c) for the protection of the interests of the person who makes the
publication, or of some other person, or for the public good;
(d) in answer to an inquiry made of the person who makes the publication in
the relation to a subject as to which the person by whom
or on whose behalf the
inquiry is made has, or is reasonably believed by the person who makes the
publication to have, an interest
in knowing the truth;
(e) for the purpose of giving information to the person to whom it is made
with respect to a subject as to which that person has,
or is reasonably believed
by the person who makes the publication to have, such an interest in knowing the
truth as to make the last-mentioned
person’s conduct in making the
publication reasonable in the circumstances;
(f) on the invitation or challenge of the person
43 See Sec 15 & Schedule 1 to the Defamation Act 1996.
(g) in order to answer or refute some other defamatory matter published by
the person defamed concerning the person by whom the publication
is made or some
other person; or
(h) in the course, or for the purposes, of the discussion of a subject of
public interest the public discussion of which is for public benefit.
However the defence will fail if the plaintiff proves that the defamatory
statement was not made in good faith.
The Queensland and Tasmania legislation is different from common law in the
1. Under s 16 there is no single, universally applicable test for
determining the circumstances in which the statutory defence will
Rather it is necessary to bring oneself within the precise terms of one or more
of its paragraphs.
2. Reciprocity of duty or interest is not an invariable prerequisite for
protection - the terms of each paragraph must be individually
3. In paras (b), (d), and (e), proof that the recipient actually possesses
the specified authority or interest is unnecessary -
a reasonable belief by the
publisher in its existence will suffice.
4. Paragraph (h) in particular has no direct common law
In comparison the common law defence of qualified privilege remains available
in New South Wales. It is, however, supplemented by
ss 20-22 of Defamation Act
1974 which provide law for multiple publications, mistaken character of
recipient and reasonable publication of information to interested
One can see that the principles of common law in relation to qualified
privilege have not remained lifeless in most countries of the
world. Rather the
courts have in recent years broadened the horizons of these principles in
relation to individual communications,
political discussions and media
publications. What is, however, worrying is the presence of diverse statutory
provisions even in
one country in relation to defamation, particularly in
relation to qualified privilege. Confusion and uncertainty around protected
speech is further compounded, impeding the social goods both defamation and
qualified privilege are supposed to further, when in
a country like Australia
44 Michael Gilooly, The Law of Defamation in Australia and New Zealand
states have preferred their own regime of laws on defamation, all at variance
with each other. The variance has become such an irritation
that the Australian
Attorney General Ruddock45 has recently directed states to adopt a
uniform law on defamation. He has even threatened imposing his own version of
law on defamation
although it is doubtful whether he has constitutional power to
do so. Personally I agree with Ruddock because we all belong to global
which values many of the same human and social goods. The laws governing us
should be also one and the same in secular
45 R u d d o c k ’s D r a f t . F o r d e t a i l s , s e e C o m m o n w e a l t h A t t o r n e y G e n e r a l ’s P a g e . www.gov.au