Bass v TCN Channel Nine

(2003) 60 NSWLR 251; [2003] NSWCA 118

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Qualified privilege
3. › Reply to public attack
4. › Derivative privilege of media
5. › Television station orchestrating confrontation
6. › Whether instigating attack and controlling programme excludes derivative privilege
1. Defamation
2. › Qualified privilege
3. › Malice
4. › Particulars of malice
5. › Knowledge of falsity and knowledge of source's malice
6. › Whether sufficient to defeat derivative qualified privilege of media publisher
7. › Whether particulars must specify improper purpose or motive
1. Defamation
2. › Qualified privilege
3. › Malice
4. › Knowledge of falsity
5. › Whether knowledge of falsity ipso facto destroys qualified privilege
6. › Whether exception for legal duty extends to social duty
1. Practice and Procedure
2. › Pleadings
3. › Particulars
4. › Particulars of malice in defamation
5. › Sufficiency of particulars
6. › Whether particulars must state ultimate improper purpose or only facts from which malice may be inferred

Quick Take

A television station that instigates a public attack and orchestrates a confrontation retains derivative qualified privilege for publishing the target's reply, provided the attacker consented to publication. However, particulars alleging the media publisher knew the source was motivated by malice and believed the published material was false are capable of establishing malice sufficient to defeat that privilege. Mere absence of belief in truth, or recklessness as to truth, does not establish malice against a media publisher with derivative privilege.