Defamation and reference checking: What recruiters in Australia need to know about liability and best practices

Compliance Emelie Dahl

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We had the privilege of consulting with David Rolph, Professor of Law at the University of Sydney. David has over two decades of experience specialising in defamation law, contempt of court and privacy. In this article, David will provide valuable insights into the legal aspects of defamation and reference checking.

What is defamation law and where does defamation law apply?

Defamation is concerned with the protection of reputations and applies to any form of communication. These laws are important to recognise, as any kind of communication may potentially be defamatory and affect a persons’ public image.  

Australian law recognises that an individual has a right to protect their reputation/public image. The concern to protect reputation is balanced against the freedom of expression. In order to qualify as defamation, there needs to be deliberate intent in hurting someone’s reputation. 

"Lowering the estimation of others is the central idea of disparagement of reputation." - David Rolph

Balance of protecting reputation and qualified privilege

Since the middle of the 18th century, providing a reference has been recognised as a specific publication that is readily protected. The common law has long been protective of an individual’s professional reputation and has valued reputations highly. 

The protection of the referee is called qualified privilege. On a privileged occasion, the law recognises a superior social, moral or legal public interest in which there's freedom of expression. Therefore, freedom of expression overrides the protection of reputation. 

Reference checking is an occasion of qualified privilege, as it is considered useful to provide a candid reference about a prospective employee. Due to the commonality of interest between the person providing the reference and the person receiving the reference, the candidate does not have the mandate to press charges for defamation. 

There are two exceptions where qualified privilege does not apply:

Exceeded Occasion -  Parties not relevant to the hiring process should not have access to the reference information.

Abused Occasion - This occurs when the dominant motive of the referee is improper (in defamation law, this is called ‘malice’). 

If one of these exceptions is proven, the referee is not protected by qualified privilege. 

What is there to keep in mind for me as a recruiter regarding defamation and reference checking?

David Rolph advises that it is important that reference information is only received and handled by people involved in the recruitment process. The reference information should not be shared with those who do not have a relevant interest. For example, a colleague outside of a relevant department.

Another useful aspect to know is that the referee is entitled to provide their genuine opinion in the reference check. David also recommends a short investigation of the former relationship between the candidate and the referee. This is advised as to understand the referee’s perspective of the candidate and to prevent any surprises.

As a referee, what is useful to keep in mind during a reference check?

As a referee, you are entitled to express your view candidly and if possible, provide facts that support your opinion. Providing facts is not a prerequisite to providing a reference, but it strengthens your position with proof.

Recently there was a case in Australia where a candidate filed for legal action against their referees for defamation when they received a negative reference. 

Historically, litigations related to negative references in Australia have generally been unsuccessful. This is due to the fact that referees are covered by qualified privilege. Providing facts that support your opinion, as well as only providing reference information within the occasion of the reference check benefits you as a reference.

Are there any other areas in recruitment / HR where defamation applies?

Occasionally, defamation may be applied in the situation during the termination of an employee. You may provide your candid opinion to the relevant party, and qualified privilege is also applied here. What is important to keep in mind is to provide information only to those relevant to receive it, therefore not exceeding the occasion. rely on facts, if possible, and not to act with deliberate intent to hurt someone's reputation.

Bio: David Rolph

David Rolph serves on the editorial boards of the Media and Arts Law Review, the Communications Law Bulletin, Communications Law and the International Journal of the Semiotics of Law. Professor Rolph is also a regular columnist for the Gazette of Law and Journalism and a frequent media commentator on a range of media law issues. David is also just in the process of finishing up the second edition of his book on defamation law with a working title of 'Defamation Law' (2nd ed., 2023). 

We hope the article was insightful! Don't hesitate to get in touch if you have questions or want to know more.