Defamation reform: keeping defamation in step with the modern eraMay 2021 | Insurance
Stage 1 review
Australian jurisdictions are moving closer to implementing the various amendments to the Defamation Acts1 identified through the Stage 1 review of the Model Defamation Provisions (MDP).
On 20 April 2021, Queensland took its next step towards bringing in the significant amendments to the MDP by introducing its Defamation (Model Provisions) and Other Legislation Amendments Bill 2021 (Queensland Bill).2
The key amendments proposed by the Queensland Bill (which were the subject of our earlier newsletter)3 include:
- introducing a serious harm test, pre-court procedures and a single publication rule based on the date of upload for online material;
- capping non-economic damages and requiring aggravated damages to be awarded separately; and
- amending the defence of contextual truth and introducing a new public interest defence.
The Queensland Bill follows New South Wales, Victoria and South Australia. The Bills4 in those states received assent in November 2020 and the associated Acts5 await the proclamation of start dates.
These jurisdictions are likely to try to start their Acts on 1 July 2021, or as soon as possible after that.
The Australian Capital Territory, the Northern Territory, Tasmania and Western Australia are yet to introduce amending Bills to their parliament.
Stage 2 review
Australia has now moved on to the Stage 2 review of the MDP, starting with the release of a discussion paper.6
Part A of the discussion paper concerns the liability of internet intermediaries. The discussion does not focus on the author creating online content in the first place (who is an accepted ‘publisher’), but on the liability of internet intermediaries (ie, everyone else who participates in publishing third party content online including those who host online forums or invite third party comments). This discussion may lead to increased protections for intermediaries in a merely passive role without any real participation in the online third-party content.
Part B of the discussion paper is about extending the current absolute privilege defence. The discussion concerns the potential risk that victims or witnesses of crimes and misconduct may not report offending conduct out of a fear of being sued for defamation. In considering how that risk might be minimised to protect victims and witnesses, the discussion also takes into account the balancing need to safeguard individuals against false or malicious complaints.
Based on the discussion so far, future defamation reforms may (amongst other things):
- Address the scope of liability of various internet intermediaries. It is likely that liability will be linked to their respective roles and functions, for example the nature of their relationships with the online content and its original publisher and their ability to address the risk of harm (for example, by moderating or removing the offending content).
- Revise the defences available to internet intermediaries. In particular, whether the current defence of innocent dissemination should be amended to clarify its application to internet intermediaries and whether a new safe harbour defence or immunity should be available to certain internet intermediaries.
- Extend the defences of absolute privilege and/or qualified privilege with a focus on victims and witnesses of crime and misconduct.
Defamation actions are becoming increasingly frequent in our modern world.
The legislation reforms currently being introduced across the states, and those under discussion, will likely be welcomed by many defendants as they modernise the (now 16 year old) Defamation Acts and aim to:
- limit frivolous defamation claims (and protect freedom of expression);
- address the current difficulties around online publications and the varied involvement of intermediaries in the publication of third-party content online (while still holding those closely involved in publishing defamatory material accountable); and
- enhance the currently available privilege defences to avoid victims or witnesses of crimes and misconduct being deterred from speaking up (while safeguarding against false or malicious complaints).
With so much potential change, practitioners in the defamation space must keep apprised of the law as it develops across the jurisdictions in the coming months.
1 Defamation Act 2005 (Qld), Defamation Act 2005 No 77 (NSW), Defamation Act 2004 No 75 (Vic), Defamation Act 2005 (SA), Civil Law (Wrongs) Act 2002 (ACT), Defamation Act 2006 (NT), Defamation Act 2005 (WA), Defamation Act 2005 (Tas).
2 Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld).
3 See Carter Newell Insurance Newsletter authored by Katherine Hayes, Greg Stirling and Hayley Nankivell, ‘Australia’s New Year’s Resolution: Defamation Reform’ (2021) <https://www.carternewell.com/page/Publications/2021/australia%E2%80%99s-new-year%E2%80%99s-resolution-defamation-reform/>.
4 Defamation Amendment Bill 2020 (NSW), Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic), Defamation (Miscellaneous) Amendment Bill 2020 (SA).
5 Defamation Amendment Act 2020 No 16 (NSW), Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), Defamation (Miscellaneous) Amendment Act 2020 (SA).
6 Attorneys-General, Review of Model Defamation Provisions – Stage 2 (Discussion Paper, 2021) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/discussion-paper-stage-2.pdf>.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.