Maccaba v Lichtenstein

Qualified privilege depends on whether the occasion of publication was protected by public interest considerations. The relevant inquiry is whether the publisher had a legal, social or moral duty, or a legitimate interest, in communicating the words, and whether the recipients had a corresponding or common interest in receiving them.

The court may examine the words used, particularly where no pre-existing relationship exists, but defamatory words do not themselves destroy privilege if they are reasonably germane to the occasion. Jewish law may be taken into account as a relevant circumstance, but the issue is ultimately determined by English law and public policy.

The claimant alleged that the defendant had slandered him by making allegations of sexual misconduct to various members and religious figures within the orthodox Jewish community. The defendant contended that the conversations occurred while he was attempting to mediate a dispute and that each occasion was protected by qualified privilege.

The judge ruled on privilege after the jury had answered that the words used on each occasion were substantially justified. The central issues were whether the defendant and each publishee had the requisite duty or interest, whether the words themselves affected the availability of privilege, and what relevance should be given to Jewish law.

1. General principles. The availability of qualified privilege is ultimately a question of public interest. It arises where the publisher has a legal, social or moral duty, or a legitimate interest, in communicating the words and the recipient has a corresponding or common interest in receiving them. In assessing a social or moral duty, the court considers who published the words, to whom, when, why and in what circumstances. A pre-existing relationship is material, although it is not necessarily essential.
2. Words used. The protection attaches to the occasion of publication. The actual words may be examined, especially where there is no existing relationship, to determine whether they were germane to the subject matter of the occasion. The use of words alleging adultery would not, by itself, destroy an otherwise established privilege. It might provide evidence of malice, but relevance is not to be assessed by an excessively objective scrutiny of every defamatory word.
3. Jewish law. Jewish law was a factor to be borne in mind but was not determinative. The issue remained whether the defendant had established the requisite duty or interest under English law. A secular English court should not treat Jewish law as a decisive answer to the privilege question.
4. Applications. Privilege was established for the conversations with Alfred Magnus, Mr and Mrs Dray, and Rabbi David Daniel Cohen. The relationships and circumstances gave rise to a duty or legitimate interest in the communications. Privilege was not established for the conversations with David Kohali, Dayan Toledano, Abraham Suissa or Charles Gabbay. Their positions, inquiries or relationships did not provide the necessary corresponding duty or interest, and the proposed intermediary justification did not require disclosure of the allegations.