LEGAL PRINCIPLE: TORT LAW – Defamation – Qualified Privilege – Malice as a Defeating Element
PRINCIPLE STATEMENT
Qualified privilege is not absolute but qualified and can easily be defeated by malice. Malice means making use of the occasion for some indirect purpose. If the occasion is privileged, it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Emeagwara v. Star Printing and Publishing Co. Ltd. & Ors (2000) NLC-1681994(SC) at p. 7; Paras A–C.
"Qualified privilege is not absolute but qualified and can easily be defeated by malice. Malice means making use of the occasion for some indirect purpose. If the occasion is privileged, it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive."
EXPLANATION / SCOPE
Malice defeats qualified privilege. Malice means using the privileged occasion for an indirect or improper purpose—not for the reason the privilege exists. If the defendant publishes for an ulterior motive (e.g., personal spite, commercial advantage unrelated to the occasion), the privilege is lost. The plaintiff must prove malice; it is not presumed. Malice may be established by evidence of spite, ill-will, knowledge of falsity, or reckless disregard for truth. The test is subjective: what was the defendant’s dominant motive? The privilege protects good-faith publications but not those driven by improper purposes.