Qualified privilege under the new breach reporting regimes

This article was originally published in the February 2022 edition of the LexisNexis Australian Banking and Finance Law Bulletin.

In connection with the introduction of new breach reporting requirements in October 2021, Australian financial services and credit licensees have had to uplift their existing reporting frameworks and design new policies to address these requirements.

This article examines the defence of qualified privilege in the context of the recent changes to Australia a financial services license (AFSL) and Australian credit license (ACL) holders’ breach reporting regimes. Given the new requirement to notify ASIC about the conduct of other licensees and other persons in certain circumstances, it is essential that licensees, and their legal, risk and compliance teams, have an understanding of qualified privilege to ensure that they can pre-emptively manage the availability of this defence.

^{This article was originally co-authored by Felicity Healy.}