Clubb v Edwards & Anor; Preston v Avery & Anor

In *Clubb v Edwards & Anor; Preston v Avery & Anor*, the High Court of Australia considered appeals arising from defamation proceedings. The primary dispute concerned the publication of allegedly defamatory material on social media platforms, specifically Facebook. The appellants, Mr Clubb and Mr Preston, were the individuals who had published the material, while the respondents, Ms Edwards and Ms Avery, were the subjects of the publications. The High Court was tasked with determining the appropriate application of the defence of qualified privilege in the context of online publications and the extent to which the common law principles of defamation should adapt to the digital age.

The central legal issues before the Court were whether the defence of qualified privilege was available to the appellants for their Facebook posts, and if so, under what conditions. This involved an examination of the elements of qualified privilege, particularly the requirement of a legal, social, or moral duty to publish and an interest in receiving the information. The Court also had to consider whether the nature of social media platforms, with their broad and often indiscriminate audience, was compatible with the established requirements for qualified privilege, which traditionally contemplated a more targeted dissemination of information.

The High Court ultimately held that the defence of qualified privilege was not available to the appellants in these circumstances. The Court reasoned that the nature of Facebook, as a platform where posts are accessible to a wide and undefined audience, did not align with the requirement for a duty to publish to a specific recipient or group with a corresponding interest in receiving the information. Their Honours emphasised that the common law principles of qualified privilege were developed in a pre-digital era and that while the law must adapt to new technologies, it should not do so in a way that fundamentally alters the established legal principles. The Court found that the publications were made to a general audience without the necessary reciprocal duty and interest required for qualified privilege to apply.

The appeals were dismissed.