21 May 2021

The defamation reformation: Australia's laws receive a makeover for the digital age

Sixteen years ago, when Australia’s current defamation laws were written, it was the norm for people to purchase printed newspapers. They were the days when tomorrow brought ‘new news’ and yesterday’s news would end up in the waste paper basket.

Times have certainly changed. We now have iPhones, social media (including Facebook, Twitter and Instagram) and of course, online news media which is available 24/7.

Changes to Australia’s defamation laws are expected in the near future to catch up with the reality of today’s world. In this article I take a closer look at those changes.

What is defamation?

First, a quick look at what defamation means and a case example.

Defamation is a communication from one person to another or to a group of people which damages the reputation of a third person. In NSW the law of defamation is currently governed by the Defamation Act 2005 (NSW) and common law.

Key elements to a defamation action

To be successful in a defamation action, the plaintiff (the person suing) must prove three things:

  1. The communication or statement has been published in some shape or form to a third person. Publication can occur by any means (in writing, verbally or in pictures) and must be published to at least one other person other than the person being defamed. Everyone involved in the publication is potentially liable. A person can also be liable for republishing defamatory material. It is no defence to argue you were only repeating a comment made by someone else. Liability can also arise if a person innocently disseminates defamatory material then fails to remove it when asked.

  2. The communication identifies the plaintiff or is about the plaintiff.

    A communication does not need to refer to a person by name to satisfy this element. Anything that leads to the person’s identification will suffice (such as a photograph or other description). The plaintiff has to prove that the communication was talking about them and that an ordinary reasonable person would assume this.

  3. The meaning of what was said is defamatory and damages a person’s reputation.

    The test for this is whether the communication lowers or harms the plaintiff’s reputation, holds the plaintiff up to ridicule, or leads others to shun and avoid the plaintiff. In other words, whether the communication affects the reputation of the plaintiff in a damaging way.

Damages and injunctions for defamation

A person who sues for defamation is usually seeking to protect their reputation and receive payment of damages for hurt and distress. Damages can also be sought for economic loss.

In assessing damages, the Court will consider the extent of the publication and the gravity of the defamatory allegations. If the defamatory publication is still circulating, a defamed person will often also seek an injunction preventing further publication.

Defences

There are a number of defences available to defamation actions, some of which are summarised below:

  • Honest opinion/fair comment

    This requires the defendant to prove that the material was an expression of honest opinion rather than a statement of fact, related to a matter of public interest and based on material that was substantially true (or subject to absolute or qualified privilege).

  • Justification/truth

    A successful plea of justification/truth is a complete defence to a defamation action. For the defence to succeed the Court must find that the defamatory ‘stings’ of the publication are objectively true as a matter of fact.

  • Qualified privilege

    This defence traditionally protects communications to the police and relevant authorities. It will not succeed if it can be proved that the defamation was motivated by malice.

  • Innocent dissemination

    For example, this defence would be available to a newsagent who innocently sells a newspaper that contains defamatory material.

  • Triviality

    This is a defence based on an argument that the communication is unlikely to cause harm to a person’s reputation or standing in the community. It is rarely effective as a defence.

  • Absolute privilege and fair reporting

    For example, statements made in Parliament or legal proceedings are protected from defamation actions. Likewise, material can be published if it is a fair report of proceedings of public concern.

Case example

A good case example of a defamation action relevant to councils can be found in an earlier Council Connect article by Gavin Stuart - How dare you say that! – the ins and outs of dealing with defamation - regarding a former Mayor of Narrabri Council who was awarded more than $100,000.00 in damages after Facebook posts were made by a local resident accusing him of corruption and intimidation.

Key upcoming changes to the defamation law

Defamation law in Australia is now under review, led by NSW. In July 2020 the Council of Attorneys-General approved amendments to Australia’s Model Defamation Provisions, which are now set to be enacted in each State and Territory’s legislation.

In NSW the changes are being introduced via the Defamation Amendment Bill 2020, assented to on 11 August 2020 and expected to come in to force on 1 July 2021.

Key changes include:

A new ‘serious harm’ threshold

One of the major changes is a new ‘serious harm’ threshold. Plaintiffs will need to show that the defamatory publication has caused, or is likely to cause, serious harm to their reputation. This will be determined by the judicial officer (not the jury) and will usually be determined as a preliminary question, prior to trial. It is expected that this threshold will significantly reduce the number of smaller ‘trivial’ cases that proceed to trial.

Single publication rule

As the law currently stands, a plaintiff has one year from the date of publication to bring an action for defamation. If the material continues to be downloaded, the one-year limitation period re-starts with each download. Under the changes, a plaintiff will have one year to bring a claim for defamation from the first time material is uploaded for access or sent electronically.

A new public interest defence

Another major change is a new public interest defence modelled on UK defamation law. It will apply if the defendant can show that the matter concerns a matter of public interest and the defendant reasonably believed that publication of the matter was in the public interest.

Concerns notices and offers to make amends

Under the changes, prospective plaintiffs will have to serve a ‘concerns notice’ setting out the imputations to be relied upon in the proposed proceedings and then wait for the applicable period (usually 28 days) for an offer to make amends to elapse before commencing proceedings.

The concerns notice will need to specify where the matter in question can be accessed (for example the web address). It will also need to set out what ‘serious harm’ the plaintiff alleges they have suffered or will suffer and, if practicable, include a copy of the alleged defamatory material.

Offers to make amends must remain open for at least 28 days and can include offers to publish an apology, remove the publication from a website or pay compensation.

These changes are expected to promote the swift resolution of many disputes without the need for court proceedings.

Damages

The amendments clarify that a maximum of $250,000 can be awarded for non-economic loss, even if a plaintiff is also awarded aggravated damages. Further, the maximum amount for non-economic loss should only be awarded in the most serious of cases.

Multiple proceedings

People may no longer bring multiple proceedings for publication of the same or similar material by the same or associated defendants without the Court’s permission.

New scientific or academic peer review defence

A person will be able to rely on this defence if it can be established that the material is contained in a peer-reviewed publication in an academic or scientific journal.

Conclusion

These amendments should see fewer small or less serious claims for defamation brought before the courts. Note that the amendments will only apply to new publications from the date the amendments come in to force - publications before that date will continue to be dealt with under the existing law.

The changes are seen as the first stage of defamation law reform. An anticipated second stage will focus on the responsibilities and liability of digital platforms for defamatory content published online.

Author: Jennifer Shaw