Malice in Qualified Privilege
Paul Mitchell, Lecturer in law, St Hilda's College, Oxford
 Public Law 328
I would like to a acknowledge the help and advice I have received from Mr J W Davies and Prof E Barendt in writing this article.
A defendant establishes a prima facie defence of qualified privilege to an action in defamation if he can show that the publication was made by him in pursuance of a duty or in protection of an interest to a person who had a duty or interest in hearing the matter published. He must also satisfy a "circumstantial test: "Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice?"
This prima facie defence is lost if the plaintiff shows that the defendant was actuated by "actual" or "express malice". What "actual malice" is has been controversial both in England and very recently in Australia; in the U. S. there are two definitions. The controversy led Professor Loveland to observe, in this journal that malice "has become an horrendously imprecise facet of English defamation law". He went on to criticise the application of the test for malice in English political libel cases because it failed to emphasise the electorate's entitlement to know the truth about its elected representatives, and he contrasted English law unfavourably with the U.S. position. This article aims to show that the differences of judicial opinion on the question of malice are more than mere failures by English judges to be precise; they should be seen as reflecting a profound, conceptual ambiguity in the defence of qualified privilege.
The role of malice
Although it is now settled that the defendant's defence of qualified privilege in defamation is conditional on the plaintiff being unable to prove actual malice, this position has been questioned. In Dawkins v Paulet the plaintiff, an officer in the Coldstream Guards, was suing his superior officer for a libel contained in a letter written by the defendant to the adjutant-general of their regiment. The defendant pleaded that he was performing his duty. The plaintiff alleged actual malice and the defendant demurred. The Court of Queen's Bench held by a majority (Cockburn CJ, dissenting) that the case raised an issue of military discipline which ought to be dealt with by the military courts. Cockburn CJ and Mellor J also considered the question of malice, with Cockburn CJ taking the view which reflects today's position, i.e. the defendant loses his defence if the plaintiff proves that he lacked "bona fides". Mellor J. however, thought that the question of malice was irrelevant:
I apprehend that the motives under which a man acts in doing a duty which it is incumbent upon him to do, cannot make the doing of that duty actionable, however malicious they may be. I think that the law regards the doing of the duty and not the motives under which it is done. In short, it appears to me, that the proposition resulting from the admitted statements on this record amounts to this: Does an action lie against a man for maliciously doing his duty? I am of opinion that it does not.
This view had great similarity with other nineteenth century opinion to the effect that no action lay for exercising one's rights so as to injure others. For instance, in Capital and Counties Bank v George Henry & Sons, another defamation case, Lord Bramwell had expressed the view that any citizen had the right to say that he would refuse to accept a cheque in payment and that, once such a right was established, the motive in exercising it was immaterial. Similarly, the House of Lords held in Bradford Corporation v Pickles that no action in nuisance was available against a defendant who drained his own land for the sole purpose of disrupting a supply of water to the plaintiff's land.
Although Mellor J.'s analysis was consistent with these later expressions by the House of Lords it did not accord with the historical development of qualified privilege. The origins of the defence are to be found in cases about domestic servants' reference in the mid-eighteenth century. At this time malice (in the sense of ill will) was a necessary ingredient of the plaintiff's ordinary cause of action, but if the plaintiff proved that the defendant had published defamatory words out him, the law presumed malice. So the burden of disproving malice was on the defendant. In the servant's reference cases the courts reversed this burden of proof on the ground that "the gist of [the action] must be malice, which is not implied from the occasion of speaking, but should be directly proved ". The necessity for the defendant to been performing a duty or protecting an interest was not to appear in the until the decision in Toogood v Spyring where Parke B. laid down the following test:
In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another ... and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice.
It is important to note that Parke B. did not mention the importance of the recipient of the communication having an interest in receiving it when he set out his general rule. He seems to have been primarily concerned with the state of mind of the defendant. Parke B.'s slightly later decision in Wright v Woodgate confirmed this by making clear that the importance of a privileged occasion was simply that it rebutted the presumption that the defendant had been malicious in publishing the defamatory matter, and so forced the plaintiff to prove malice separately.
So, from an historical perspective at least, Cockburn CJ.'s judgment in Dawkins was the more convincing, since it placed the defence of qualified privilege within the structure of a tort based on malice. Ames too, in an article criticising the view expressed in Bradford Corporation v Pickles that there could be no liability for the spiteful exercise of a right, thought that there was general principle of tortious liability that: "The wilful causing of damage to act ... is a tort unless there was just cause for inflicting the damage" In both defamation and Ames' general principle it is clear that tortious liability is being imposed because the defendant did an act which he intended should cause harm to the plaintiff – the intention to injure is what makes the act a wrong.
Having thus established what the basic role of malice in qualified privilege is, it is now possible to attempt to formulate a precise definition. In Horrocks v Lowe, the leading case on the definition of malice in qualified privilege, there was a disagreement between the Court of Appeal and the House of Lords. The plaintiff was a councillor about whom defamatory allegations were made in a council meeting by the defendant, another councillor. It was clear that council meeting provided an occasion of qualified privilege, but the judge found the defendant's state of mind was one of "gross and reasoning prejudice" sufficient to amount to malice. The Court of Appeal, presided over by Lord Denning MR, held that it was necessary for the plaintiff to show that the defendant was actuated by spite or ill-will. It further held that a defendant could not be malicious if he honestly believed in the truth of what he said and concluded that the defendant had not been malicious. The House of Lords, concurring in a speech of Lord Diplock, agreed with the Court of Appeal on the facts, but rejected both of these propositions of law. They held that a defendant was malicious if he "misused" the privileged occasion by not speaking out of duty or to protect a moral interest. They also held that a positive belief in the truth of what is published "may not be sufficient" to rebut an inference of malice.
Both courts agreed that the foundation of "malice" was the defendants' motive, a proposition supported by persuasive earlier authority. The House of Lords' view of malice, however, went further than the Court of Appeal's. In Lord Diplock's analysis the defence was lost if the occasion was "misused":
... in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty; whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.
Slightly later on in his speech, he made explicit that this concept was not limited to the desire to injure the plaintiff:
There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.
The definition goes beyond making the defendant liable for a "wrong motive" - perhaps it is better described as liability for a failure to have the right motive – but in making liability turn on the motive for publication it is still consistent with the historical basis of qualified privilege outlined above. The width of the definition seems to have been overlooked in the leading negligence case Spring v Guardian Assurance plc, where the main question was whether the writer of a reference owed a duty of care to the subject of it despite the fact that defamation already regulated liability for references. The plaintiff was an insurance salesman, and the reference had been written about him by compiling the reports of his colleagues. One of these reports by a senior salesman contained a defamatory allegation which had been invented by the writer in order to protect himself against allegations of inefficiency. The plaintiff did not sue in defamation - probably because he would not have received legal aid - and both the Court of Appeal and House of Lords assumed that any action in defamation would have failed. The Court of Appeal, commenting on the invented false allegation, said: " . . . his lies about the alleged meeting ... were only evidence of an improper motive if [the salesman] told those lies in order to harm the plaintiff." In the House of Lords, Lord Woolf seemed to be strongly influenced in his decision that a duty of care was owed in negligence by the fact that the plaintiff was inadequately protected in defamation. He said:
Malice is extremely difficult to establish. This is demonstrated by the facts of this case. The plaintiff was able to establish that one of his colleagues, who played a part in compiling the information on which the reference was based, had lied about interviewing him, but this was still insufficient to prove malice .
It is clear that the assumption that an action in defamation would fail was false. The senior salesman who invented the allegation against the plaintiff in order to protect himself misused the occasion. He was, therefore, malicious under Lord Diplock's test in Horrocks, and Guardian Assurance were vicariously liable for his tort. To the extent that the reasoning in Spring is based on the plaintiff being given inadequate protection by the law of defamation the decision was made per incuriam.
The harder issue to disentangle is whether a defendant's honest belief in the truth of this statement should make a finding of malice against him impossible. This is awkward because the existence of express malice in the defendant is a question of fact for the jury. However, it is not a question left entirely in the jury's hands: the judge only leaves the question to them at all if he considers that there is some evidence of malice. Judicial pronouncements about express malice tend therefore to be made in the context of whether the plaintiff in the particular case had adduced enough evidence of express malice for the issue to be left to the jury. There is very little in the way of general definitions. For instance, where a master had discharged one of his servants on suspicion of theft and had instructed all of his other servants not to associate with their former colleague because he was a thief, the court held that "the facts proved are consistent with the presence of malice, as well as with its absence. But this is not sufficient to entitle the plaintiff to have the question of malice left to the jury …".
In order that the issue of malice be left to the jury the plaintiff only needs to adduce evidence to suggest its presence. But some types of evidence are better than others, a point well illustrated by Hayford v Forrester-Paton. The defendant had published defamatory allegations about the plaintiff's suitability to run a missionary school to the members of a committee which was helping the plaintiff to raise funds for the school. The defendant pleaded successfully that the publication had been made on a privileged occasion. The plaintiff pleaded the following evidence of malice:
(1) the defendant knew that the plaintiff had good testimonials;
(2) the defendant ought to have made more enquiries first;
(3) the defendant had made serious charges, in intemperate language;
(4) the plaintiff should have been consulted and given the opportunity to refute the charges;
(5) the defendant ought to have asked the person from whom he obtained the information for permission to publish it;
(6) the defendant made personal accusations against the plaintiff, not criticisms of the mission (which would have been justified by the occasion).
At first instance it was held that there was insufficient evidence of malice and this decision was upheld by the Court of Session. Lord Alness brought out the weakness of the plaintiff's averments of malice:
Before considering in detail what the pursuer has averred, it is important to observe what he had not averred. He had not averred that the defender made the statements complained of in the knowledge that they were untrue. Such an averment has always been regarded, and, I think, properly regarded, as a good averment of malice. Indeed it is difficult to imagine better proof of malice than the promulgation of an injurious statement in the knowledge of its falsity.
The reason for this seems to be that "the defendant cannot have had a proper motive for saying what he did not believe to be true". However, while the lack of honest belief is good evidence of malice, it is not malice itself, so that if, for instance, the defendant has a duty to make a statement which he knows is false he will not be held to be malicious if he was genuinely acting in pursuance of his duty. In this exceptional situation the defendant can be seen to have had a proper motive for saying what he did not believe to be true.
An appreciation of the fact that the cases are dealing with whether there is sufficient evidence of malice, rather than definitions of malice allows us to avoid drawing mistaken general conclusions from judicial remarks. For example, in Royal Aquarium and Summer and Winter Garden Society v Parkinson the plaintiff succeeded in showing that the defendant was reckless as to the truth of the allegation which he make. His lack of honest belief in the truth of the statement was held to be sufficient evidence of malice that the case could be left to the jury. It would be utterly wrong to derive from this the conclusion that a defendant who did have an honest belief could never be held to be malicious. The most that could be said of such a defendant would be that the best type of evidence of malice was not shown against him; but other types of evidence might still be present. Thus, in Smith v Thomas the defendant had argued that proof of an honest belief on his part negatived malice. Tindal CJ. held that:
. . . this is the denial of one ground upon which malice in fact might be presumed against the Plaintiff (sic), but of only one. If the Plaintiff could shew that the Defendant had uttered the words, and had not believed them to be true at the time he uttered them, it would undoubtedly be conclusive evidence of the Defendant's malice against the Plaintiff. The allegation, therefore, in the plea, that the Defendant did believe the words to be true, negatives undoubtedly that single ground of malice but no more. The communication, however, may have been malicious on various other grounds. Direct malice against the Plaintiff may have gone far in producing the Defendant's belief. Consistently with the allegation in his plea, the Defendant may have sought out the occasion of hearing the slander of the Plaintiff and again the subsequent occasion of making the communication.
Similarly, in the New Zealand case Coughlan v Jones and Jones the defendant was found to be malicious when she made defamatory allegations which she believed to be true on an occasion of qualified privilege but not for the purpose for which the occasion was privileged.
It is respectfully suggested that Professor Loveland may have made the mistake of treating statements about what is evidence of malice as definitions in the following passage:
Malice has become an horrendously imprecise facet of English defamation law. It may be satisfied under any one of three heads, one of which has several sub-divisions, and none of which are wholly separable from the others. Head one requires the plaintiff to establish that the defendant's motive in publishing the material was not to discharge the relevant duty but rather to injure the plaintiff. (That injury would necessarily result from a genuine motive to perform the duty does not amount to malice.) Head two focuses on the defendant's effort - or lack thereof - to establish the truth of the information. There is authority to suggest this test may be met in one of three ways: if the plaintiff proves the defendant either (a) knew the information was false, or (b) recklessly or (c) negligently failed to establish its accuracy. Head three allowed the malice test to be satisfied if the information was circulated to an unnecessarily wide audience.
The "first head" is the definition, although it should be amended to reflect the House of Lords' decision in Horrocks v Lowe that the defendant only needs to "misuse" the occasion; he does not have to intend to injure the plaintiff. The second and third "heads" are simply ways of proving the first. Whilst it is accurate to say that none of the "heads" is "wholly inseparable from the others", clarifying the true relationship between them shows that the concept of malice is precise and coherent.
It can thus be seen that the Court of Appeal in Horrocks v Lowe erred in holding that when councillors spoke at a public meeting "so long as they are honest they go clear".3 Proof of an honest belief only shows that one of the most commonly used ways of showing a defendant's malice is unavailable to the plaintiff.
The U.S. approach
If the facts of Horrocks had arisen in the United States the Court of Appeal's view that a defendant was not malicious if he honestly believed the truth of his statements would have been absolutely correct. American law deals with defamatory allegations against politicians by applying the First Amendment to the Constitution, which prohibits, inter alia, laws restricting freedom of speech. As New York Times Co v Sullivan holds, a politician who is criticised in relation to his public duties can only maintain an action for defamation if he shows with "convincing clarity" that the defendant was actuated by malice in making the allegation. "Malice" is defined as "with knowledge that it was false or with reckless disregard of whether it was false or not". The American cases enforce this definition strictly: where a jury has been directed in terms that suggest that they should find for the plaintiff if the defendant intended to injure the plaintiff's reputation, the direction is set aside as being too wide because it fails to make clear that the defendant must have known of, or been reckless as to the statement being false. When the defamatory allegations are not made against a public figure, for instance in an employment reference, a more orthodox defence of qualified privilege applies, which is lost if the publication "was not made primarily for the purpose of furthering the interest which is entitled to protection".
The cases dealing with malice in the context of public figures are, quite literally, the opposite of Commonwealth authorities like Horrocks, Smith and Coughlan. The Commonwealth authorities held that a malice test based on the defendant's honest belief in the truth was too narrow, since he might have intended to injure the plaintiff's reputation in some other way. At present Australia is hovering uneasily between the two formulations. In Lange v Australia Broadcasting Corporation the High Court of Australia held that a special type of qualified privilege applied to criticisms of politicians in relation to their public duties, which would be defeated by proof that the publisher was giving vent to spite in publishing, even if he honestly believed the truth of the publication and had acted reasonably in publishing it. This seemed to be in line with the motive test laid down in Horrocks v Lowe, but the High Court further held that "having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper". The resulting test is based neither on attaching liability to the defendant's bad motive nor on the defendant's belief in the truth of what he said. The only situation where it seems to be satisfied is where the publisher wanted to cause personal, rather than political damage.
The root of this lack of comity lies in fundamentally different approaches to the function of privileged communications. As explained earlier, English law protects privileged communications because a good, socially beneficial motive in the defendant can be inferred from the circumstances of publication. If this inference is falsified, i.e. the defendant did not in fact act with the right motive, the protection of privilege is lost. In America the protection derives from the Constitution, and, in particular, the interpretation of the First Amendment advanced by Meiklejohn. In outline, this interpretation can be summarised in three steps:
(1) the basis of the American constitution is that it provides for government by the citizens through their elected agents;
(2) a citizen's main governing function is his choice in elections;
(3) any speech which tends to illuminate or inform the electoral choice of a citizen is therefore of political importance and must be protected by the Constitution.
Of course, one could argue that the only speech of real political importance is that which accurately informs the electorate, i.e. true allegations. False allegations would misinform and therefore distort the choice of the electors. The reason for giving the wider, "absence of malice" protection to the defendant is pragmatic: if only true allegations are privileged defendants might be deterred or "chilled" from publishing material which they are confident is true, but are not sure that a court or jury would find proven on the balance of probability: The Supreme Court, using a theory developed by Mill, took the view that it was better for some false allegations to circulate rather than to risk suppressing some which were true, especially since the public figures to whom the New York Times rule applied could use their access to the media to rebut the allegations. The New York Times rule is thus a product of theory and pragmatism.
The crucial distinction between the English and American approaches is whose interest they focus on. In England the focus is on the speaker and the underlying question is whether the defendant has committed a wrong. In America the focus is on the audience, and their interest n54 in hearing what is being said, because that is what justifies the right to freedom of expression. The underlying question is whether the defendant has exercised his constitutional right, the limits of the right being determined by the reason for its existence, i.e. informing the electorate.
When an utterance is known or strongly suspected to be false it is of protection under either regime. In England the knowledge of falsity raises a very strong inference of bad motive, rebuttable only in the unusual situation where a defendant has a duty to communicate information which he knows to be false. In the United States the knowledge or strong suspicion of falsity means that those hearing the utterance are unlikely to become better informed by it, so their interests as electors are not served. However, when the utterance made from a bad motive with an honest belief the outcome should (and does) differ. In England, the focus on the defendant's wrong suggests that he should be made liable because of his bad motive. In America, by contrast, a malicious utterance believed to be true is still likely to inform those hearing it; because the audience interest is furthered no liability should attach to the statement. On the other hand, a statement in an American employment reference which believed to be true, but made in order to injure the plaintiff's reputation would be actionable, since it would fall under the orthodox defence of qualified privilege, not the constitutional defence.
The disagreement over malice can thus be seen to be a consequence of a deeper question - how should we deal with the fact that defamation is both an important wrong in the private law of torts and also subject to constitutional law constraints? To put the same question slightly differently, to what extent should the public law dimension of defamation determine its substantive rules? Thus, the qualified privilege situation can appear to be either private or public law depending on how it is analysed: it is public when seen in terms of the extent of a constitutional right, and private when seen as a question of the defendant's wrongdoing. This is more than just a matter of description. If the way in which the defence is rebutted is to be consistent with the reasons for the existence of the defence, the definition of malice will depend on how the defence is categorised. When qualified privilege is seen in terms of wrong doing malice should be defined in terms of ill will; if, on the other hand, the defence is seen as marking the extent of the right of freedom of expression, malice should be defined in terms of honest belief in the truth.
The United States approach resolves this question by having two separate rules, one for public and one for private matters. This solution, however, is not readily available to countries with no written guarantee of freedom of expression, because of the difficulty of separating out public and private matters without a specific provision to justify the distinction. The tension in the Australian case of Lange is clear: the Court was influenced to extend the defence of qualified privilege by reasons which were based on constitutional rights, but as the structure of the defence was based on private law, the High Court was saddled with the wrongs-oriented concept of malice as ill-will. They tried to dilute this concept by excluding the motive of causing political damage.
English law has also had to face the same difficulty In Reynolds v Times Newspapers Ltd the Court of Appeal held that a newspaper's allegations that the Irish Prime Minister had lied to the Dail could be within the scope of qualified privilege. The motivating reasons behind this decision were that there ought to be freedom to discuss political, public concerns. The Court drew on article 10 of the European Convention on Human Rights, in order to establish the "proper balance" between free speech and the protection of reputation. Such rights-based reasoning can only become more common once the Human Rights Act 1998 incorporating the European Convention has come into force. However, the Court of Appeal did not discuss at all the consequences of such rights-based reasoning for the concept of malice. Counsel for the defendant, Lord Lester QC, seems to have advanced the argument "that malice should be equated with knowing or reckless falsity", but their Lordships simply affirmed that Horrocks v Lowe was still good law. The only reason they gave for rejecting Lord Lester's submission was this: proving that a publisher lacked an honest belief in the truth of the matter published "will often be difficult or impossible" and would therefore tip the "proper balance" unfairly against the plaintiff. It is respectfully suggested that, in addition to this practical consideration, there was also an important issue of principle to address in deciding what the definition of malice should have been. It is now for future courts to address it.
It may be possible to reconcile these differences in English law by changing the emphasis of the defence of qualified privilege in a way which some of the cases suggest. The change in emphasis is best explained by looking again at what Parke B. said in Toogood v Spyring:
In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another … and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow lirnits.
"The common convenience and welfare of society" to which Parke B referred seemed to be that a defendant could make a statement out of duty or interest and not worry that he would be unable to satisfy a jury that he was not malicious. Instead the "common convenience and welfare of society" required that the plaintiff should have the burden of proving malice.
However, it has been suggested in other cases that this "common convenience and welfare" is the recipient's interest in hearing the words. For example, in Coxhead v Richards, Erle J. suggested that the protection for servants' references was "founded on the interest of the receiver to know the character of the servant". Earlier cases on fair reports of judicial or Parliamentary proceedings similarly stressed the importance of facts being known to the public over the motive of the defendant. Thus in R v Wright it was held that:
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known. The general advantage of the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. The same reasons also apply to the proceedings of Parliament.
Two very recent cases in Australia and New Zealand strongly emphasised the interest of the public in establishing a privileged occasion. The Australian High Court in Lange v Australian Broadcasting Corporation stated:
... each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it.
In Lange v Atkinson the Court of Appeal of New Zealand appeared to go further. The majority opinion stated that "the privilege or freedom from claim is founded in the public interest" as a matter of uncontroversial first principle. Tipping J in his concurring judgment, said: "The law of qualified privilege is based essentially on the proper interest of the recipient in receiving the publication".
The Court of Appeal in Reynolds v Times Newspapers criticised the New Zealand court's decision because "the duty test is unwarrantably elided with the interest test". But perhaps it is now more appropriate to emphasise the public interest in hearing the publication preference to emphasising the defendant's motive, especially since ordinary liability in defamation is not longer based on wrongdoing. If this change of emphasis occurs, consistency requires that the definition of malice should be altered. Rather than the defence being lost by proof of the defendant's wrong motive, it should only be lost if the defendant knew or strongly suspected that the utterance would not inform his audience about a matter in which they had a legitimate interest. In general terms, this formulation of malice would protect speech which was likely to be of value to those hearing it. The new formulation of malice would move the defence of qualified privilege away from its historical origins, but it would develop the common law in harmony with constitutional values at a time when the Human Rights Act, with its emphasis on the "public interest" in the context of freedom of expression,n73 is reinforcing how important those values are.