Defamation – Extension of the Absolute Privilege Defence to Police Reports

In July 2024, a significant amendment to the Defamation Act 2005 (NSW) came into effect in New South Wales and the Australian Capital Territory.This reform, under Stage 2 of the Defamation Law Provisions, extends the scope of absolute privilege to improve protections for those reporting suspected criminal conduct to the police. The change addresses concerns that the threat of defamation claims was deterring victims from reporting criminal activity,particularly in cases of fraud and sexual misconduct.

The “chilling effect” of defamation claims

One of the main drivers behind this reform was the"chilling" effect that the possibility of defamation claims may have on victims or witnesses seeking to report alleged criminal activity. Victims of fraud, sexual misconduct, and other criminal offences were often hesitant to report such crimes to the police due to the fear of being sued for defamation.

Proponents of the amendment argued that extending absolute privilege to these reports would remove a significant barrier to reporting. It enables victims to speak freely and provide law enforcement with as much information as possible for them to determine the best course of action. The reform ensures that those making complaints are fully protected from defamation claims, irrespective of their motive or the reasonableness of their actions.

Understanding absolute privilege and qualified privilege

Absolute privilege provides a complete defence to defamation claims, meaning that even if the information published is false or motivated by malice, the defendant cannot be held liable for defamation. This contrasts to the defence of qualified privilege, which offers a more limited defence. Qualified privilege can be defeated if the plaintiff proves that the defendant was motivated by malice on the part of the publishing party.

The scope of the amendment

The specific provision introduced under s 27(2)(b1) of the Defamation Act extends absolute privilege to cover all defamatory publications made to police officials, regardless whether the publisher was unreasonable in their conduct or was actuated by malice. This includes reports made not only to police officers but also to administrative staff, contractors, or individuals acting on behalf of the police force in an official capacity. These may include police officers of other jurisdictions or contractors. As long as the report is made while the official is acting in their official role, the person making the report is protected from defamation liability.

This is a significant change as it means even those who make knowingly false complaints to the police, with the intention of defaming another person, will be shielded from defamation claims. However, penalties for making false reports to the police remain in place under Section 307B of the Crimes Act 1900 (NSW), ensuring that false complaints are still subject to criminal sanctions.

Before the amendment, the defence of absolute privilege did not generally apply to defamatory publications made to the police.Defendants typically had to rely on qualified privilege, either under the general law or under the Act, as a defence for these kinds of publications.

While qualified privilege offers some protection, it did not have the same force as absolute privilege. Further, stakeholders had raised concerns that the uncertainty surrounding the scope of qualified privilege left many individuals vulnerable to defamation claims, even when they were reporting criminal activity in good faith. For instance, under general law, the defence of qualified privilege requires that both the publisher has an interest or duty to communicate the information, and the recipient has a corresponding duty to receive it. This dual requirement creates ambiguity and may not always cover reports made to police, as seen in Sherman v Lamb[2022] QDC 215.

The path forward

The extension of absolute privilege represents a significant step forward in supporting victims and witnesses of criminal activity. By removing the threat of defamation claims, the law now provides a safer environment for reporting suspected crimes to the police.

 The information in this article is general in nature. If you are involved in a defamation matter, it is important to act quickly as there are statutory time frames that must be adhered to. If you wish to speak to one of our defamation lawyers, please contact us at info@hfklawyers.com.au or call our office at (02) 9307 8900.

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