The high bar to establish a publication is actuated by malice in defamation proceedings The high bar to establish a publication is actuated by malice in defamation proceedings

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The high bar to establish a publication is actuated by malice in defamation proceedings

3 June 2022 | Professional Indemnity & Financial Lines

A car dealer’s claim that it had been defamed in online posts by a disgruntled customer was defeated by the defence of qualified privilege, including because the posts were not found to have been actuated by malice.

In Issue

  • Whether four impugned publications made by the Defendant, Mr Peter King, defaming the Plaintiffs were justified by the statutory defence of qualified privilege, and if so, whether that defence was defeated by a finding that Mr King was actuated by malice.

The background

In July of 2016, Mr King purchased a 2011 Porsche Panamera from Lorbek Luxury Cars (LLC). The First Plaintiff, Mr Srecko Lorbek is the owner and CEO of LLC, with the Second Plaintiff, Mr David Lorbek (brother of Srecko), the salesman employed by LLC and the individual who sold Mr King the vehicle.

Soon after purchasing the vehicle from LLC, it became apparent that it was unroadworthy due to the rotors on the front brakes being less than the prescribed width. The vehicle’s unroadworthy condition was first recorded a month earlier by its previous owner, the Porsche Centre Brighton, however, was on sold to LLC soon after by a third-party distributer. There was a dispute that arose as to LLC’s knowledge of the vehicle’s condition prior to it being sold to Mr King, however, upon review of all the oral evidence, McDonald J concluded that Mr King would have asked David Lobrek about the brakes and their condition.

Between the period of 26 August 2016 and March of 2018, Mr King published 13 posts online which detailed his adverse perception of his dealings with LLC. The Plaintiff’s claim was based upon 4 of those posts, three of which were Google Reviews, and the other on Law Answers.

During oral testimony, it became obvious that Mr King had also posted further publications using the alias’ “PKavo” and “Steve Smith”, seeking to create a false impression that there were people other than himself who held the same view of LLC as he did.

The decision at trial

Qualified Privilege

Mr King submitted, pursuant to s30 of the Defamation Act 2005, that he was entitled to the defence of statutory qualified privilege. To succeed, Mr King was required to establish:

  1. that the recipients of the publications had an interest in having the information published in respect of LLC; and
  2. that the publication of the defamatory matters was reasonable in the circumstances.

In determining that the recipients did have an interest in the information contained in the publications, McDonald J noted that:

“each of the impugned publications recorded [Mr King’s] negative experience of purchasing a vehicle from LLC. The Information in the publications was of direct interest to customers and potential customers of LLC. The Individuals who read [Mr King’s] publications did not do so out of idle curiosity. Rather, they did so because of their interest as customers or potential customers of LLC, in the experience of a dissatisfied customer.”

Turning to whether the publications were reasonable, His Honour noted that prior to publication Mr King “undertook extensive investigations to try and understand how he had purchased a vehicle which was not roadworthy.” In addition, and noting the non-exclusive list of matters which the court may consider when assessing reasonableness under s30(3) of the Act, His Honour found that Mr King’s conduct was reasonable:      

“as a result of the investigations which he undertook, [Mr King] had a genuine and reasonably held belief that LLC knew that the vehicle was unroadworthy when he purchased it on 13 July 2016.”

Malice

Given that the defence of qualified privilege was established, the Plaintiffs were required to prove that the publications were actuated by malice, as outlined in s30(4) of the Act, to defeat Mr King’s defence. The Plaintiff bears the onus of proof that the improper purpose actuating a publication was the dominant reason for making the publications. McDonald J noted the high bar required to establish malice:

“save for a case in which a defendant knows that an impugned publication is false, proof of the defendant’s ‘ill will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice’. The evidence or the publication must also show some grounds for concluding that the ill will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privilege occasion and actuated the publication.”

His Honour concluded that even though the Plaintiffs established that Mr King bore animosity towards them, they had failed to discharge the onus of establishing that the impugned publications were actuated by malice because the court accepted that Mr King’s dominant motive was to share his experience with prospective customers; and the publications were made after investigations.

As a result of the court’s acceptance of the defence of qualified privilege, the claim for damages and a permanent injunction was dismissed.

Implications for you

This case emphasises the high bar required for a plaintiff to establish that a publication was actuated by malice. Even if a plaintiff can successfully establish that there is, among other things, ill will, animosity, or prejudice, this may not be sufficient to establish malice to overcome a defence of qualified privilege.


Srecko and David Lorbek v Peter King [2022] VSC 218

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