You may not grant the job, scholarship, or finance you apply for due to a bad reference. However, the Australian defamation laws are very broad and you only have limited recourse if your reference is a negative one.

All forms of communication are subject to defamation laws, regardless of how wide or narrowly distributed. Publications, no matter how small or large, can have serious reputational consequences. Some types of publications are design to have reputational implications.

This is evident when you give an employment reference. It will often be positive. However, in many cases, negative information about the subject will be include in a reference. Referees should provide a complete and honest assessment.

Defense Of Qualified Privilege Reference

In defamation law, a reference can be given by qualify privilege, which is common law. Qualified privilege refers to situations when an individual’s right of reputation protection must be subordinate or affected by a higher interest. These are the occasions that the law considers necessary for the common convenience and welfare of society.

It has been well established that a reference is an occasion of privilege since the 19th century. Judges regard it as an example of a privileged event

This is not surprising given the position English defamation law adopted at that time. In the middle of the 19th century, as the common law defense of qualified privilege was maturing, there were a number of English cases where servants sued their masters for unflattering references.

The courts favored the masters’ ability to assess former servants in a fair and honest manner over the rights of the servants to preserve their reputations and secure employment.

It was important for prospective masters to understand what they were doing than it was for servants to be able successfully sue for defamation. Although it is difficult to find good help nowadays, it has always been so.

The common law defense of qualified privilege is still in force today. It gives the reference with broad protection. It does not offer absolute protection. Offers only a limited protection, as the name implies.

What Are The Exceptions To This Rule?

Two ways can a defense of qualify privilege be lost, and the referee could subject to liability for defamation. If the occasion is exceptional, then the first.

A narrow defense is common law qualified privilege. It protects against defamation liability when communication made between persons who share a common interest or where the person sending the communication has a legal social or moral obligation to do so. The person receiving the communication also has a mutual interest.

The common law defense of qualified privilege requires that there be complete reciprocity between duty and interest. This call the community of interest. Publication to people not related to the referee, who have no mutual interest in receiving it will result in the destruction of the priviledge occasion and expose the referee for liability for defamation.

This means that if you send a reference to someone, it should sent only to the person who ask it or to the person making the decision on the subject.

Referees can also lose qualified privilege if they misuse the occasion. A referee who abuses a privilege occasion is usually referred to as malice.

Malice can be best describe as an improper motive. A referee who is motivate by an inappropriate motive may not allowed to use a common law defense of qualified privilege if they write a reference.

A referee can show an improper motive by showing spitefulness or ill-will. It often shown by referees who aren’t honest with the truth of the reference.

It is not easy to prove malice. Most cases, unless the referee acts carelessly or is foolish, will not yield any evidence of malice. On the balance of probabilities, it will be possible to infer that the referee had an improper motive from the things or statements he made.

Comments are closed.