Malice will destroy the qualified privilege. A master has the qualified privilege to write something which is disparaging of the character of his former servant but this privilege will be lost if the latter proves that his former master in making the defamatory statement was actually moved by malice, i.e., spite, enmity, or ill will in the popular sense of that term.
In the case of statements which fall under absolute privilege, even the presence of malice in the defamer will not destroy his privilege.
The following classes of statements were considered as privileged:
(1) Fair and accurate reports of parliamentary proceedings - In England, the decision in Wason v. Walter, settled the privilege of faithful reports. In that case, The Times newspaper published an accurate report of the proceedings of the House including the Lord Chancellor's speech containing defamatory remarks about the plaintiff. The plaintiff sued the publishers of The Times for libel but they were held not liable.
In India, Article 361-A enacts that no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceeding of either House of Parliament or the Legislature Assembly or, as the case may be, either House of the Legislature of a State unless the publication is proved to have been made with malice;
provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a state.
By clause (2) the protection given to newspapers is also extended to reports of news broadcast by broadcasting stations.
(2) Fair and accurate reports of judicial proceedings open to the public - Courts include both superior and inferior courts. But if the proceedings are not open to the public, i.e., if they are held in camera, the privilege does not apply.
Again, if the court has prohibited the publication, reporters should not publish it otherwise they will be liable for contempt of court. Another important qualification regarding the publication of court proceedings in newspapers is that they should not publish indecent or obscene matter.
(3) Fair and accurate reports in newspapers of the proceedings of any public meeting - Qualified privilege for a fair and accurate report on a "public meeting", which is normally defined as one that is bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted has been granted in Britain by the Law of Libel (Amendment) Act and in India by Article 361-A of the Constitution. One essential prerequisite is that the report must necessarily be for the public benefit.
(4) Statements made in pursuance of duty - On certain occasions, persons are under a social or moral duty to communicate to another about the character of others with whom they are very intimate. For example, a former employer of a servant is under a social duty to communicate his opinion about the character of his former servant to a prospective employer.
In order to claim this privilege the person receiving the information and the person giving it should have reciprocal interest in the matter.
The privilege will depend partly upon the nature of the communication and the parties interested therein.
(5) Statement made by Trade Protection Societies - In London Assn. for Protection of Trade v. Greenland Ltd. the House of Lords held that the communication was privileged as the Secretary of the Trade Protection association was acting only as a confidential agent of the subscriber and not as the agent of the association and any communication between a principal and agent is always privileged.
In such a case the agent is under a legal duty to communicate the result of his enquires to the person who has employed him to make them, and his duty is the basis of a distinct privilege arising out of the relationship of principal and agent.
The communication made by an insurance company to its policyholders about an agent of the company and the complaint by the creditor of an officer to his commanding officer alleging irregularity in payment of his debt were held privileged statements.
But in the latter case, the qualified privilege was negatived on account of the express malice of the defendant.
It helped that the words were written on a privileged occasion since the commanding officer had a common interest with the defendant in the payment of the plaintiff's debt but the communication was taken out of the protection afforded by the privileged occasion by the express malice of the defendant.
(6) Self-protection: Statement made to protect the defendant's own interests - Law views with leniency statements made by one person against another in the heat of passion when he is charged with dishonorable conduct or otherwise provoked.
A person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statement he may make about the person who attacked him will be privileged provided, it is published bona fide and is fairly relevant to the accusations made.
The law justifies a man in repelling a libelous charge by denial or explanation. He has a qualified privilege to answer the charge, and if he does so in good faith, and what he publishes is fairly an answer and is published for the purpose of repelling the charge, and not with malice, it is privileged though it is false. It is clear that the privilege must be used as a shield of defence, not as a weapon of attack.
The privilege is not confined to the statement made in answer to an attack on personal character. A statement by a man in defence of his property against an injurious statement concerning it is also privileged.
The privilege also extends to any statement made by a man bona fide for the protection of the rights or interests of his principal or client in defence of the character of his principal or client and the fact that the statements were not authorised by the principal or client will not destroy the privilege.
A person whose character or conduct has been attacked in the press is entitled to have recourse to the press in his defence and vindication and, in answering such attacks, if he makes relevant defamatory statements about the person who has attacked him, such statements are prime facie privileged.
But in such a case the defendant is justified in resorting to the press only if the original attack was made upon him in the press or in public. If it is made in private between two or three persons only, the defendant has no right "to enlarge the constituency and publish his defence to the general public through the newspapers and, if he does so, his answer will not be privileged".
(7) Redress of grievances - Statements made to proper authorities for the redress of public grievances are privileged.
Thus, a petition to the Postmaster General complaining against the conduct of a local postmaster and a complaint to the Home Secretary that a local Magistrate had incited people to break the peace would fall under qualified defence.
Express malice would destroy qualified privilege. Malice in this connection may mean either (a) personal spite in the contents of the statement, or (b) personal spite or carelessness in the mode of its publication.
III feeling between the parties and their past and present conduct towards each other will be evidence of malice in the statement.
Mere carelessness or even honest belief produced by irrational prejudice, does not amount to malice "despite the imperfection of the mental process by which the belief is arrived at, it may still be honest".