Under s 22 of the Defamation Act 1974 (NSW), malice is not a separate consideration from reasonableness; a defendant relying on statutory qualified privilege must prove absence of malice as part of establishing that its conduct was reasonable, rather than the plaintiff bearing the onus of proving malice as a reply. Where an imputation consists partly of comment and partly of assertion of fact, s 35 permits the defence of comment to apply to the comment portion while the factual assertion may be defended on another basis such as truth. The interest requirement under s 22(1)(a) is substantially wider than the interest required for common law qualified privilege.
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