nice scales, but excess in reply may so exceed a reasonable view of the necessities of the occasion as to provide evidence from which malice may be inferred.
234 In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, McHugh J said at 390 [65]:
In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an "interest" in those who receive the response. In Mowlds v Fergusson, Dixon J said:
"Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted."
(Citations omitted)
235 The defence was considered more recently in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. In a speech at a "peace rally" made one week after the occurrence of the Cronulla riots, Mr Trad placed part of the blame for the riots on Radio Station 2GB. On the following day, the radio station broadcast a program containing several statements which were defamatory of Mr Trad. He sued for defamation. The appeal in the High Court concerned the availability of the defence of qualified privilege to the defamatory responses of the radio station to Mr Trad's criticisms.
236 Gummow, Hayne and Bell JJ held, at 48 [33], that the statement of principle by Dixon J at first instance in Penton v Calwell (set out above) should be accepted.
237 Their Honours emphasised that a response which impugns the truth of the charges contained in the attack and/or the general veracity of the attacker may be a proper exercise of the privilege, providing that it is commensurate with the occasion and is done bone fide for the purposes of the vindication. Their Honours also referred to the statement of Starke J in Loveday v Sun Newspapers that the privilege is not absolute and that the response by the person attacked "must be relevant to the attack and must not be actuated by motives of personal spite or ill will", at [34].
238 Gummow, Hayne and Bell JJ also explained that the defence of qualified privilege in response to an attack is one of the few circumstances in which the common law has recognised that a
