Where a defendant publishes matter found to convey defamatory imputations but did not intend to convey those imputations, the defendant's knowledge that the imputations are false does not establish malice sufficient to defeat a defence of qualified privilege. There is no rebuttable presumption that a defendant intended to convey the defamatory imputations objectively determined. Section 30(3)(h) of the Defamation Act 2005 (NSW) contemplates that a response from the person defamed may be sought after publication, not only before it. The s 33 triviality defence requires a prospective assessment of the likelihood of harm at the time of publication, not a finding as to whether harm was actually suffered. Whether 'any harm' in s 33 includes hurt feelings remains an open question.
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