Jurisdiction - Australia
Australia – The Push And Pull Of Political Campaigns: Former Labor MP Sued For Alleged Defamatory Tweet.

22 May, 2014


Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution


Crosby v Kelly [2013] FCA 1343

In an interlocutory judgment published on 11 December 2013, the Federal Court has allowed a delayed plea of qualified privilege to be made in a defamation case involving publication on Twitter. Depending on the form that plea takes, the case may, if it proceeds to trial, provide useful guidance on the application of the qualified privilege defence to publication to Twitter follower groups, particularly in relation to political content. This article provides the background to the case, discusses the judgment and then explores qualified privilege defences that may be relevant.

The Case Before Justice Rares

The case relates to a Tweet which Dr Michael Kelly (respondent) (while a member of the House of Representatives representing the Labor party) tweeted on 1 October 2011 stating: “@MikeKellyMP@[email protected] always grate to hear moralizing from Crosby, Textor, Steal and Gnash. The mob who introduced push polling to Aus“.

Mr Crosby and Mr Textor (together, applicants) were the directors of Crosby Textor Research Strategies Results Pty Ltd (campaign strategy specialists) and Mr Crosby was also a former Federal Director of the Liberal Party of Australia. The tweet was sent to Dr Kelly’s Twitter followers, as well as followers of political journalist Latika Bourke and Mr Textor. This action was commenced in the ACT under the Civil Law (Wrongs) Act 2002 (Act).

The applicants filed an interlocutory application on 20 September 2013 to strike out certain parts of the respondent’s amended defence for this defamation proceeding.

The defences challenged included justification, contextual truth and qualified privilege defences. The decision in relation to each category of defence will be discussed in turn. But first it is important to explain the imputations.

The Imputations Complained Of

Under the Uniform Defamation Acts, the matter complained of as a whole (in this case, the Tweet) is the cause of action, and not particular imputations (defamatory meanings) which arise from it. This is also the common law position. As was observed by Rares J in this case (at [15]), imputations are pleaded as particulars, and are an important lynch pin for key defences.

In this case, the imputations complained of are to the effect that each applicant, together with the other, “introduced to Australia the morally disreputable practice of pretending to conduct a genuine and objective opinion poll while actually disseminating, to participants in the supposed poll, material unfairly slanted against those persons or groups to whom the conductors of the supposed poll (or those commissioning it) are opposed, with a view to surreptitiously and dishonestly prejudicing participants against those persons or groups (“push polling“).

The applicants contend that the imputations are false and defamatory.

The respondent’s amended defence pleaded that the matters complained of were substantially true, contextually true, an honest expression of an opinion and published on an occasion of qualified privilege. This interlocutory application sought to strike out certain sections of the amended defence.


Substantial Truth

The respondent pleaded statutory and common law truth (also called justification) defences. The truth defence is established if the defamatory imputations relied upon by the plaintiff (or applicants in this case) are proved to be substantially true: section 135 of the Act. Rares J noted that at common law, and under the Act, it is possible to defend a publication completely by justifying all of the imputations, or to mitigate damages by justifying some of them: at [17], citing Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89.

The issue in relation to the truth defences was whether the particulars pleaded would, if proved, be capable of sustaining them. Rares J found for the respondent on this point and allowed the truth defences to remain.

Contextual Truth

The issues in relation to the respondent’s contextual plea included whether the imputation relied upon was capable of arising, and whether it was the same as the applicants’ imputations or was too general.

The respondent relied upon the statutory contextual truth defence in section 136 of the Act, which provides a defence where:

a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( contextual imputations ) that are substantially true; and
b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Rares J made a general observation that, as a result of this defence, “the plaintiff cannot … confine, at will, the field of forensic battle by his or her choice of imputations complained of”: at [19].

The respondent pleaded two contextual imputations, that each of the applicants “is a hypocrite”. The particulars relied upon were to the effect that the applicants’ expressed moral views about matters that were different than their actions (ie publicly condemned the practice of push polling but in reality, had introduced the practice into Australia during an election).

The Court held that the matter complained of is capable of conveying an imputation of hypocrisy. His Honour held (at [27]) that the ordinary reasonable reader would be capable of understanding the matter complained of to convey that each applicant expressed moral views about the matter that were different from what they actually did.

The second argument arises from the finding by the NSW Court of Appeal in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at 177-179 (Kermode). In that case, McColl J with whom Beazley and Giles JJ agreed, found that the analogue of section 136 does not enable a defendant to plead an imputation pleaded by the plaintiff, and also held that a plaintiff may defeat the defence by “pleading back” the defendant’s imputations. A key element of this decision was the finding by the Court that in such circumstances, a defendant can still rely upon a plea of “partial justification” in mitigation of damages. In Kermode the Court noted the result (at [86]):

“In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:


a. prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;

b. prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;

c. to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff’s damages: partial justification; and

d. to the extent the defendant cannot prove that the defamatory imputation carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff; s26.”

The applicants also relied upon a finding by Spigelman CJ and Ipp JA in Jones [2004] NSWCA 205 (Jones) that a general contextual imputation cannot meet a pleaded more specific imputation. Rares J noted that Jones was not binding on the Federal Court and observed that it related to a differently worded section in a different statute and context.

In this case, Rares J held that the respondent’s imputation of hypocrisy was not the same as the applicants’
imputations and should not be disallowed on the basis of the reasoning in Jones.


Qualified Privilege

The applicants in this case argued that the respondent should not be able to rely upon qualified privilege because he did not plead this defence in an application before the Full Federal Court on the question of whether the Federal Court has jurisdiction to hear this matter (the Court held that it does have jurisdiction due to the operation of certain cross vesting legislation: see Crosby v Kelly (2012) 203 FCR 451). The respondent had filed a defence for consideration by the Full Federal Court which did not include a qualified privilege defence.

Rares J said that it is possible that in some circumstances, failure to plead or raise an issue at an earlier stage in litigation may give rise to an abuse of process when the party seeks to raise that issue at a later, and potentially inappropriate, stage.

His Honour held that, while it is not entirely satisfactory that the plea was raised at the stage, this is not a case of abuse of process. Moreover, there was no issue of late pleading which would enliven the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

In those circumstances, the plea was allowed to remain.

Comment: Potential Application Of Qualified Privilege Defences To Twitter

The respondent relies upon a common law qualified privilege defence.

There are two potentially relevant types of common law qualified privilege defence.

First, there is the narrow or traditional common law qualified privilege defence which applies where a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. It appears that this is relied upon. This defence is defeated if publication is made to too wide a group, on the basis that in such circumstances some recipients do not meet the duty/interest test.

There are some cases in which Courts have taken quite a robust approach to this defence. In particular, in Roberts and another v Bass (2002) 194 ALR 161, it was found that the defence was available in respect of defamatory material distributed by a candidate in an election during an election campaign which was defamatory of another candidate.

It is possible that similar reasoning could apply in this case. This is likely to depend upon matters such as the identity and roles of the various Twitter followers who received the Tweet complained of and surrounding circumstances including whether the respondent knew who he was publishing to.

A second potentially relevant case is Bashford v Information Australia (Newsletters) Pty Ltd (2004) 78 ALJR 346; [2004] HCA 5, in which an erroneous case report in an Occupational Health and Safety Bulletin was found to be published on an occasion of qualified privilege. This was found on the basis that its distribution waslimited to a subscriber list and the recipients each had a legitimate interest in receiving information on health and safety issues as each of them were people responsible for health and safety in the workplace.

Again, similar reasoning could be applied here, depending on matters including the identity of each Twitter follower.

The second potentially relevant qualified privilege defence is the Lange defence, which is available in respect of publications which relate to government or political matters where the publication was reasonable in the circumstances: Lange v ABC (1997) 189 CLR 520. This defence is available in respect of publications which are made to too wide an audience to attract the narrower defence. However, the reasonableness requirement ordinarily requires that a response be sought from the applicants prior to publication. It appears that this defence is not relied upon in this case: at [7].

Outcome Of Application Before Justice Rares

The Court directed the respondent to serve a draft amended defence on the applicants with the changes specified. If the applicants do not consent to the filing, the proceedings will need to be relisted.

What You Need To Do

If this matter proceeds to trial, it may provide useful guidance as to the way in which different types of qualified privilege defence apply in respect of Tweets.

The existence of matters of this type also provide a reminder to all Twitter and social media users to carefully consider the risks involved before publishing any potentially defamatory publications.

Employers should also remember to regularly update, and remind employees of, their social media policies.


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Jessica Norgard, Ashurst
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