SMH attack, the Second Online SMH attack, the Tweet attack and the Print SMH attack.
46. The Primary Tweet was posted to the identical public audience to which the Tweet attack was published, and was also made available to [the] same public audience as the Online SMH attack, Second Online SMH attack, Print SMH attack, and Pre-recorded Attack.
47. Given the wide public audience who had read or viewed one or more of the Greenwich attack, Tweet attack, Online SMH attack, Second Online SMH attack, Print SMH attack, and Pre-recorded Attack that affected the reputation of Latham each recipient or potential recipient of the Primary Tweet had a reciprocal interest to Latham in posting the Primary Tweet in reading the Primary Tweet.
48. Latham says that in the circumstances pleaded in paragraphs 38-47 of the Defence above he published the Primary Tweet on an occasion of qualified privilege.
219 Mr Latham's submission about the defence was as follows:
In the present matter, Mr Greenwich had made a very strong attack on Mr Latham in the Sydney Morning Herald. The primary tweet directly referred to that attack, both by echoing it ("disgusting") and by quoting the Metcalfe Tweet. The reply made by Mr Latham, by way of the defence of the attack on him, pointed out to [the] public that what was "disgusting" was up for debate. Given the large readership of the Sydney Morning Herald, Mr Latham's use of a tweet which was online for only a few hours was proportionate in scope.
In terms of malice, Mr Latham was using the occasion to attack the credibility of his attacker, which was a proper purpose. To defeat the defence it must be shown that an improper motive existed and it was the dominant reason for the publication: Roberts v Bass (2002) 212 CLR 1, at [104]. And honesty of purpose is presumed in favour of the publisher: Roberts at [96]. Harming the reputation of political opponents or candidates is not, per se, an improper purpose: see per Kirby J in Roberts at [171].
220 Justice White helpfully set out in extensive detail the relevant principles in relation to common law qualified privilege (reply to attack) in Gould v Jordan (No 2) [2021] FCA 1289 at [50]ff. The summary of those principles below is derived from part of what his Honour said in that case.
221 The common law recognises that the response to an attack on a person's reputation, interests or integrity may be an occasion of qualified privilege, provided that the defamatory response is sufficiently connected to the occasion of the privilege.
222 Such occasions exist:
- (a) when both parties have an interest in the subject matter to which the impugned matter relates; and
- (b) if the publication of the defamation is made in protection of the respondent's interest.
