Australia’s New Year’s Resolution: Defamation Reform

In July 2020, amendments to Australia’s Model Defamation Provisions were approved by the Council of Attorneys-General. States and territories are expected to take steps to enact those amendments this year, marking the first significant reforms to Australia’s defamation laws since 2005.

The proposed amendments

The key amendments to the Model Defamation Provisions are:

Adopting the United Kingdom’s approach, the proposed amendments provide that a publication will not be considered defamatory unless it has caused, or is likely to cause, serious harm to the reputation of the plaintiff.

To some extent, this amendment will reverse the onus of proving whether harm was suffered. Previously, it was for a defendant to prove that harm had not been suffered by the plaintiff by bringing a defence of triviality. It will now be incumbent on the plaintiff to prove, as a threshold issue, that they suffered serious harm. The proposed amendments allow defendants to bring interlocutory applications on this issue early in proceedings with a view to dismissing minor disputes and ensuring defamation law does not become ‘a forum for resolving interpersonal disputes’¹.

The current uniform defamation laws include a cap on non-economic damages of $250,000. The amendments provide that the cap on non-economic damages is to be adjusted annually in accordance with the percentage change in average weekly earnings of full-time adults.

In the recent high profile proceeding involving Rebel Wilson, the Victorian Court of Appeal held that if a court is satisfied that an award of aggravated damages is appropriate, the statutory cap on non-economic loss does not apply. In that case, Ms Wilson was awarded $600,000 in special damages, which exceeded the cap.

The proposed amendments clarify that the cap on damages should not be exceeded, with the cap representing the award for the most serious examples of defamation.

Currently, it is not mandatory for an aggrieved party to issue a concerns notice to a publisher prior to commencing defamation proceedings against them. To encourage resolution of claims prior to litigation, the proposed amendments make this a mandatory pre-condition to commencing defamation proceedings. The publisher will then have 28 days to make an offer of amends. If the publisher chooses to make an offer, the proposed amendments state the offer must remain open for acceptance for at least 28 days.

Under the current framework a defendant may defend a defamation claim on the basis that, in addition to the allegedly defamatory imputations, the publication the subject of the proceeding:

• Contains other imputations that are substantially true; and
• The alleged imputations are not likely to harm the plaintiff’s reputation.

This requires a defendant to plead additional substantially true imputations arising from a publication to establish the defence, instead of simply alleging that certain of the alleged imputations were substantially true.

The proposed amendments reformulate the defence to clarify that a defendant may plead back any substantially true imputations originally pleaded by the plaintiff.

In addition to the current qualified privilege defence, a new public interest defence has been introduced, aimed at ensuring that freedom of expression is not unduly limited. It provides that a defendant will not be liable if:

• the publication concerned an issue of public interest; and
• the defendant reasonably believed that publication of the matter was in the public interest.

The defence differs from the current defence of qualified privilege as it does not require a defendant to prove the readers had a specific interest in receiving the information, thereby potentially protecting journalists (amongst others) whose work is published to a wide or potentially unlimited class of readers.

This defence exists in the United Kingdom, Canada and New Zealand. Interestingly similar broad protection had been available under Queensland’s Defamation Act 1889 until its repeal by the uniform law in 2005. It remains to be seen whether the intended aims of this new defence will be achieved, however the legislative clarification that it is a question for the jury as to whether this defence (and qualified privilege) is established might assist.

Australia’s defamation law is currently premised on the multiple publication rule, which provides that an online publication is published each time it is downloaded and viewed by a reader. The effect of this is that the one-year limitation period for bringing a defamation claim is essentially unending if a publication is electronic.

This rule has been criticised widely, including by the High Court in Dow Jones & Co Inc v Gutnick² in which Kirby J stated that while it had been established that there were ‘real defects in the current Australian law of defamation as it applies to publications on the Internet… [i]t would exceed the judicial function to re-express the common law on such a subject’.

The proposed amendments alter the position, introducing the single publication rule which provides that the limitation period for defamation claims begins on the date of the first publication, unless a subsequent publication is materially different.

Status of reform

New South Wales has consistently led the way with defamation reform. In June 2018, a report prepared by the New South Wales Department of Justice detailing a statutory review of the Defamation Act 2005 (NSW) was tabled in the state’s Parliament. That report, suggesting many of the amendments detailed above, formed the basis of the Council of Attorneys-General’s national discussion paper.

One day after amendments to the Model Defamation Provisions were approved, New South Wales’ Attorney General gave the Legislative Assembly notice of a Bill to enact the proposed reforms. The Defamation Amendment Bill 2020 (NSW) was assented to on 11 August 2020 but has not yet commenced operation, with a date yet to be proclaimed.

Shortly afterwards, South Australia passed the Defamation (Miscellaneous) Amendment Bill 2020 (SA) which was assented to on 26 November 2020. As with the New South Wales’ legislation, a date for commencement has not yet been proclaimed.

While similar bills are yet to be tabled in the remaining jurisdictions, both Victoria and Tasmania have outlined that work is being undertaken to enact the amendments. It is expected the remaining states will follow suit in the coming year to maintain Australia’s uniform approach to defamation legislation.

Conclusion

The collective result of the proposed amendments is that prospective plaintiffs’ ability to bring frivolous proceedings will be limited and freedom of expression, particularly as it relates to online publications, will be better protected.  

While the introduction of a bill to enact the proposed amendments to Queensland’s defamation legislation has not yet been discussed in the state’s parliament, it is likely that a bill will be tabled this year in light of the expected pressure from stakeholders and other states (particularly New South Wales).

However, as the states and territories progressively transition, it is paramount to remain up to date with the status of reforms across jurisdictions.

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Greg Stirling

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Special Counsel

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Hayley Nankivell

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