Malice Qualified Privilege

May 30, 2025

Malice in Defamation

Definition of Malice

In the law of defamation, malice denotes a wrongful or improper motive on the part of the defendant in publishing a defamatory statement. It does not simply mean spite or ill-will in the ordinary sense, though those may be examples of malice. Rather, malice is defined as the absence of an honest belief in the truth of the statement or the presence of some improper motive for the publication beyond the scope of the occasion’s purpose. In other words, if a defendant publishes a defamatory statement knowing it to be false, recklessly indifferent to its truth, or for a dominant purpose unrelated to the reason the law deems the occasion privileged, the publication is said to be malicious.

By contrast, a person who genuinely believes their statement to be true, even if they feel resentment or have some personal animosity, will not be found to have acted with malice so long as that honest belief is present. The crucial question is the defendant’s state of mind and motive in making the publication.

To understand more about defamation generally, including the legal definition and how claims are brought, please visit our main defamation page.

Further Reading on Defamation Law

• Defamation Defences
• Qualified Privilege in Defamation Law
• Honest Opinion Defence
• Serious Harm Requirement

Malice plays a important role in defamation primarily as a means for claimants to defeat a defendant’s privilege. Defamation is generally a tort of strict liability, a claimant need not prove the defendant’s ill-will or intention to harm in order to establish liability for an unprivileged defamatory publication.

However, when the defendant relies on a privilege defence (such as qualified privilege), the concept of malice becomes critical. In these contexts, the law presumes that the defendant’s communication, even if defamatory, should not incur liability provided it was made in good faith to fulfil a duty or protect an interest. This presumption is lost if the claimant can show the defendant abused the occasion by acting with malice. Thus, malice functions as a defeating factor, if proved, it defeats the privilege that would otherwise attach to the occasion of publication.

Historically, the requirement of malice has been the safeguard against abuse of privileged occasions. It ensures that the shield of privilege only protects those who act honestly and for proper purposes. If a defendant’s primary motive was improper (for example, to vent personal spite or to injure the claimant’s reputation for reasons unrelated to the duty or interest at hand), the law will not allow the privilege to stand. Likewise, if the defendant knew the statement was false, or lacked any genuine belief in its truth, the publication is treated as malicious and unworthy of protection . In summary, malice is the claimant’s rebuttal to certain defences: it is the factor that, when proven on balance of probabilities, strips away a defendant’s immunity under privileges that would otherwise bar the claim.

Qualified Privilege and Malice

At common law, a communication made on an occasion of qualified privilege will protect the defendant from a defamation claim unless the claimant can prove the publication was made with malice. An occasion of qualified privilege arises when the publisher has a legal, social or moral duty to communicate the information and the recipient has a corresponding interest in receiving it, or in any situation where the law recognises the utility of free communication outweighs the potential harm to reputation, provided the publisher is acting in good faith. The principle is that it is in the public interest in allowing candid communication in certain relationships or circumstances justifies protection from liability, but only so long as the privilege is not abused.

Malice is precisely what constitutes an abuse of that privileged occasion. If the claimant establishes malice, the qualified privilege defence collapses.  The presence of malice means the defendant has stepped outside the purpose of the privilege: the communication is no longer a bona fide exercise of the duty or interest that created the privilege, but rather a vehicle for personal or improper ends.

For example, if an employer gives a negative employment reference about a former employee, that statement is protected by qualified privilege in principle; however, if it can be shown that the manager knowingly included false allegations out of personal revenge, the privilege is defeated by malice. In such a case, the law will treat the manager as if the shield of privilege never applied.

Qualified Privilege and Malice: Key Principles

The leading modern authority on malice in the context of qualified privilege is the House of Lords decision in Horrocks v Lowe [1975] AC 135. In Horrocks v Lowe, Lord Diplock set out principles clarifying what does and does not constitute malice in defamation.

According to those principles, a defendant will be protected by qualified privilege as long as they honestly believe in the truth of the defamatory statement. It was emphasised that the defendant’s honesty of belief is paramount: malice is synonymous with a lack of honest belief (i.e. dishonesty) or an ulterior motive that becomes the dominant purpose for the publication.

Thus, even if a defendant is biased, angry, or has some personal dislike towards the claimant, that alone is not malice so long as their dominant motive is to perform the duty or protect the interest underlying the privilege and they genuinely believe what they say.

On the other hand, if the defendant knew the statement was false, or published it recklessly without caring whether it was true or false, then the law will infer malice, because no true duty or interest is served by circulating information one believes (or suspects) to be untrue. Lord Diplock also noted that if the defendant’s dominant motive was something other than the privileged purpose, for instance, an intent to injure the claimant or to indulge gossip, that improper motive constitutes malice, even if the statement might incidentally relate to a subject of common interest.

It has been observed that a person may hold strong prejudices or anger and yet not be acting maliciously if he still honestly believes in the truth of his words. Evidence of personal animosity is not in itself proof of malice unless it is shown to have overborne the honest belief or become the primary motive for the publication .

Conversely, in cases where a defendant fabricates allegations or knowingly exaggerates beyond what the duty requires, the courts will find malice because the defendant is clearly using the occasion for an improper purpose. The law thus strikes a balance: it protects well-intentioned, honest communications on privileged occasions, but withdraws protection from those who abuse the occasion by lying or pursuing collateral purposes.

Evidence and Proof of Malice

The burden of proving malice lies squarely on the claimant. The law starts with a presumption that the defendant was acting honestly and without malice on a privileged occasion; it is up to the claimant to rebut that presumption with convincing evidence. Malice must be proven on the balance of probabilities, the civil standard of proof, but given the serious nature of the allegation, judges often expect claimants to adduce particularly cogent evidence to satisfy this burden. Because malice concerns the defendant’s state of mind, it can rarely be proven by direct evidence; instead, claimants rely on inference from circumstances and the defendant’s conduct.

What sort of evidence can establish malice?  Examples include:

• Knowledge of falsity, if it is shown the defendant knew or blatantly suspected that the statement was untrue but published it anyway, that is usually conclusive evidence of malice. Honest belief is incompatible with knowingly spreading falsehoods.
• Reckless disregard for the truth, a defendant who publishes a defamatory allegation without any attempt to verify it, in circumstances where a responsible person would investigate, may be found malicious if the lack of inquiry reveals an indifference to truth. This is essentially treated on par with actual knowledge of falsity, as it shows the defendant did not care whether the statement was true or false.
• Extraneous motive, evidence that the defendant had a dominant purpose ulterior to the occasion can prove malice. For instance, if there was prior hostility or a feud, or if the defendant stood to gain some personal advantage by harming the claimant’s reputation, such evidence can demonstrate that the publication was driven by that improper motive rather than the protected purpose.
• Exaggeration or inclusion of unnecessary defamatory matter, if the defendant embellishes the account with unnecessary defamatory details or distributes it more widely than necessary, it may suggest a malicious intent to cause harm beyond what the privileged occasion would require. Similarly, persistently repeating defamatory allegations after they are known to be false, or refusing to retract them, can support an inference of malice.
• Inherent improbability or absence of foundation, a court may infer malice if the defendant’s allegations are so inherently improbable or based on such flimsy material that the only reasonable explanation for the defendant’s belief is that they were indifferent to the truth or motivated by something other than a genuine duty/interest.

It is not enough for the claimant merely to show that the defendant was careless, impulsive, or even irrational in making the publication. Negligence in failing to verify a story, for example, does not equate to malice if the defendant still honestly believed the story. The courts are cautious here: they will not label a defendant “malicious” just because he jumped to an incorrect conclusion or was influenced by emotion, provided his primary belief in the truth remained intact and no improper purpose singularly guided his actions.

Judges will typically not allow the question of malice to go forward unless the claimant’s evidence is reasonably capable of satisfying the test for malice. This means the evidence, taken as a whole, must be more consistent with the presence of malice than with its absence, such that it is more likely than not that the defendant was indeed actuated by malice. If the evidence of malice is too thin or equally consistent with an innocent explanation (such as an honestly mistaken belief), the court will withdraw the issue of malice from consideration, and the qualified privilege defence will stand. In practise, clear findings of malice are relatively rare, because claimants often struggle to meet this demanding evidentiary threshold.

Common Law vs Statutory Privilege: The Role of Malice

Common law qualified privilege (as discussed above) and statutory qualified privilege both can be defeated by proof of malice, but it is important to understand their distinctions. Statutory privilege refers to specific situations defined by legislation in which publications are protected, usually for reasons of public interest, subject to certain conditions.

For example, the Defamation Act provided a schedule of statements that are privileged , such as fair and accurate reports of parliamentary proceedings, judicial proceedings, certain public meetings, and so forth. These are instances of qualified privilege created by statute, rather than by common law, and the statute itself stipulates the effect of malice . Typically, the legislation makes clear that the privilege will be lost if the publication was made with malice. Indeed,  notes that malice defeats statutory privilege just as it defeats common law privilege, and the term “malice” in the statutes is interpreted in accordance with the common law meaning .

Under the (pre-2013) Defamation Act 1996, section 15 and Schedule 1 listed categories of reports and statements that were privileged. Section 15(1) expressly stated that these privileges applied “without malice” , meaning if the claimant could show the publication was made with malice, the defence would not be available. The same principle now appears in the Defamation Act 2013, which re-enacted and expanded many of those privileges. Section 7 of the 2013 Act, with its accompanying Schedule, provides for a range of reports and materials that benefit from privilege. The statute again makes clear that those forms of privilege are qualified , the protection is forfeited if the defendant published with malice . Thus, a newspaper that publishes a fair and accurate report of a government press conference, for example, is protected under statutory qualified privilege, but if it can be proven that the newspaper intentionally distorted the report or included false information out of malice, the privilege will not apply.

One key distinction  points out is that for statutory qualified privilege, the conditions of the statute must be strictly met first, for instance, the report must truly be fair and accurate and on a matter covered by the Schedule. Only if those conditions are satisfied does one reach the question of malice. Malice is conceptually separate: even a technically fair and accurate report can lose protection if malice is proved. Conversely, if a report is not fair and accurate (thus failing the statutory conditions), the privilege is lost regardless of malice, so the question of malice might not even arise in such a case. In summary, statutory privilege and common law privilege both yield to malice, but statutory privilege is defined by specific criteria and sometimes additional requirements (such as providing an opportunity for the defamed person to reply or correct, in certain cases) on top of the absence of malice .

Malice in the Context of the Defamation Act 2013

The Defamation Act 2013 brought significant reforms to defamation law in England and Wales, including changes to the defence landscape where malice traditionally operated.  discusses how malice is treated, or, in some instances, rendered less central, under the 2013 Act. Notably, the Act abolished the common law defence of Reynolds “responsible journalism” privilege (also known as the Reynolds public interest defence) and replaced it with a new statutory defence of publication on matter of public interest (Defamation Act 2013, section 4). Under the old common law Reynolds regime, the focus was on whether the publisher acted responsibly in journalism; malice as a separate concept did not need to be proven by the claimant, if the publication failed the responsibility test, the defence failed irrespective of malice. With section 4 of the 2013 Act now governing public interest publications, the statute does not explicitly use the term “malice” at all. Instead, it requires the defendant to show that the statement was on a matter of public interest and that they reasonably believed that publishing it was in the public interest. This formulation, notes, implicitly incorporates the substance of the malice question, but approaches it from the opposite direction.

Under section 4, if a defendant honestly and reasonably believed the publication was in the public interest, that will effectively negate any allegation of malice, because an honestly held belief in the public interest is inconsistent with an improper motive. Conversely, if a claimant can demonstrate that the publisher was acting out of spite, personal vendetta, or without regard to the truth (classic malice elements), it is highly unlikely the court would find that the defendant’s belief in the public interest was reasonable or genuine. In that sense, while malice no longer operates as a standalone “defeater” in the text of the public interest defence, evidence of malice will still undermine the defence by showing that the defendant did not meet the good faith requirements of section 4.  This change represents a shift from where the claimant had to prove malice to defeat privilege, to a new paradigm where the defendant carries the burden of proving responsible publication. Nonetheless, the practical outcome is similar in many cases: a maliciously motivated publication will not be protected, whether one phrases it as defeated by malice or as “failing the statutory criteria of reasonable belief”.

Another area affected by the 2013 Act is the honest opinion defence (replacing the common law fair comment defence). Under the previous law, fair comment could be defeated if the claimant proved the defendant published the opinion with malice, for instance, not truly holding the opinion expressed. The new statutory defence of honest opinion, set out in section 3 of the 2013 Act, does not use the word malice either, but it requires that the opinion must be one that an honest person could have held based on the facts known, and crucially, that the defendant did genuinely hold the opinion. If a claimant shows the defendant did not honestly believe their comment (effectively that it was expressed in bad faith), then the defence fails by definition. This is essentially the malice principle under a different guise. The law still refuses protection to those who abuse their freedom of speech rights through dishonest statements or improper purposes, but statutes like the Defamation Act 2013 incorporate that refusal inherently in the conditions of the defence rather than as a separate rebuttal by the claimant.

In summary, under the Defamation Act 2013, one no longer speaks of “malice” defeating the public interest defence or the honest opinion defence in so many words. Instead, one asks whether the defendant’s publication meets the statutory standard of responsible belief or genuine opinion. However, the underlying principle remains aligned with the malice concept: a defendant who deliberately lies, who has no honest belief in what was published, or who is pursuing an illegitimate agenda, will fail to meet those statutory standards, just as they would have been found to have acted with malice under the old law. Meanwhile, in areas where privilege is still explicitly qualified by malice, notably the various privileges for reports and other publications preserved in section 7 and Schedule 1 of the 2013 Act, the traditional doctrine continues unchanged. A claimant who can prove malice in those contexts will defeat the privilege, just as before. The Defamation Act 2013 thus streamlines defamation defences but does not offer sanctuary to the malicious defamer.

Conclusion

Malice is not about general bad feeling; it is about the misuse of a privileged situation or the publication of known or recklessly untrue material. Proving malice is challenging, but when established, it ensures that no defendant can hide behind privilege or statutory defences to launch dishonest or reckless attacks on another’s reputation. At the same time, the requirement that malice be proved (and proved with convincing evidence) protects well-intentioned speakers who make genuine errors.

The Defamation Act 2013 has reframed some of these issues within new statutory defences, yet the essential principle persists: only those who act without malice, in the sense of with honest belief and proper motive, can fully avail themselves of privilege and other defamation defences . The law thus strikes a careful balance between robustly protecting reputation and preserving the freedom to speak frankly when duty, interest, or the public good require it, withholding protection only from those who abuse that freedom through malice.

To understand more about defamation generally, including the legal definition and how claims are brought, please visit our main defamation page.

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