Defamation / Reputation
Afanasyev v. Zlotnikov
Nominations Are Now Open for the 2024 Columbia Global Freedom of Expression Prizes. Learn more and nominate here.
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Victoria Supreme Court dismissed a libel action brought against the well-known Australian conservative commentator Andrew Bolt. The Court held that the defamatory imputations were trivial and obviously made under qualified privilege.
The defendants are a journalist, Andrew Bolt, and his employer, the Herald and Weekly Times. In 2012, Bolt send an email concerning the plaintiff, David Barrow, to the managing editor of the Herald and Weekly Times. The email, alleged to be defamatory by Barrow, was forwarded to the executive director of the Australian Press Council. Barrow brought an action for defamation, and the defendants raised the defenses of qualified privilege and triviality and reasonable offer of amends.
The Court found that Barrow had been a victim of defamation and turned to the various defenses to defamation to determine whether a cause of action was appropriate.
Qualified privilege requires two pre-conditions: “the publication must be made in the performance of a legal, social or moral duty, or to protect an interest; [and] the publication must be made to persons who have a corresponding duty or interest in receiving same.”
The Court found that the defamatory statements were made on an occasion of qualified privilege because the publication met both of the above elements. Barrow further argued that the defense was defeated because the defendants acted with malice. Express malice can defeat a defense of qualified privilege. Malice requires knowledge of falsity or an improper motive and Barrow argued that malice was the dominant reason for the publication. The Court disagreed, finding no evidence that the defendants knew the falsity of the statements. Therefore, the defense of qualified privilege stands.
The Court next turned to the statutory defenses of triviality and reasonable offer of amends. Triviality permits a defense when the defendant can prove that the publication was unlikely to sustain the plaintiff any harm, and is unique to Victoria. To prove this defense the defendant had the burden that at the time of the publication the publication was unlikely to cause any real harm to the plaintiff. The Court found that the defendant met this burden: the email was only published to two persons, so the defamatory imputations were mild, and the Court found that it was unlikely that the Plaintiff suffered or would suffer any harm. For the defense of reasonable offer of amends, the defendant must, as soon as practicable, make a reasonable offer to make amends with the plaintiff. Bolt made an offer to amend, but it was not within the prescribed time limit and was therefore invalid. However, because the other two defenses stand, the case was dismissed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by not allowing trivial matters of defamation that meet the requirements for qualified privilege to go forward.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Australia is a common law country. The lower courts of Victoria are bound by this decision.
Let us know if you notice errors or if the case analysis needs revision.