Qualified Privilege Definition:

In Pressler, the British Columbia Court of Appeal wrote:

"The essence of the defence (of qualified privilege) is a duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it."

In Blackshaw v Lord, Justice Stephenson wrote:

"The subject matter must be of public interest; its publication must be in the public interest. That nature of the matter published and its source and the position or status of the publisher distributing the information must be such as to create the duty to publish the information to the intended recipients, in this case the readers of the Daily Telegraph. Where damaging facts have been ascertained to be true, or been made the subject of a report, there may be a duty to report them ... provided the public interest is wide enough. But where damaging allegations or charges have been made and are still under investigation, or have been authoritatively refuted, there can be no duty to report them to the public....

"There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs....."

As Canada's Supreme Court said in Hill v Church of Scientology:

"Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself....

"(A) privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.

"The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice.  Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff.  However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice."

REFERENCES:

• Blackshaw v. Lord, [1983] 2 All E.R. 311
• Crerar, David, "Recent Developments in the Defamation Defence of Qualified Privilege", 2001 59:5 The Advocate 683
• Hill v Church of Scientology, [1995] 2 SCR 1130
• Newman v Halstead, 2006 BCSC 65
• Pressler v Lethbridge, 2000 BCCA 639