25 November 2020

Uniform Defamation Law – New Law, New Era

Introduction

In 2004, each State and Territory in Australia agreed to support the enactment of uniform model provisions in relation to the law of defamation known as the Model Defamation Provisions (MDP).

For the first time in over 15 years, significant changes have been proposed to the MDP’s. Following submissions and feedback from stakeholders (including media and digital companies) and public consultation, in July 2020 the Council of Attorneys-General agreed to support the proposed changes to the MDP.

While the Defamation Amendment Bill 2020 (NSW Bill) was approved and assented to on 11 August 2020, the amendments are yet to come into force.  

This bulletin explores some of the key changes contained in the NSW Bill and how these proposed changes may affect defamation cases in the future.

Serious Harm as an Element

Prior to the NSW Bill, the Defamation Act 2005 (NSW) (Act) provided no distinction between slander, which is the publication of defamatory matter in a form that is temporary and merely audible, and libel, which is the publication of defamatory matter in a written or more permanent form. Therefore, a cause of action could be brought without proof of special damage or showing that there was a serious harm element to a publication.

The NSW Bill provides for serious harm to be an element of the cause of action for defamation which means that a plaintiff will be required to prove that the “publication…has caused, or is likely to cause, serious harm to the reputation of the plaintiff”. The purpose of this is to encourage the resolution at an early stage by focussing on the “serious harm” threshold issue from the outset.

The principal features of this aspect are as follows:

  • a judicial officer, rather than a jury, will determine whether the serious harm element is established

  • the serious harm element can be determined before or during the trial for a defamation proceeding (either by application of a party or the judicial officer)

  • if the serious harm element is to be determined before a trial, it is to be done so as soon as practicable.

Requirement for a Concerns Notice

A Concerns Notice is a notice sent by an aggrieved party to the party who published material, prior to the commencement of proceedings, which does the following:

  • sets out the publication complained of

  • sets out the defamatory imputations that arise from the publication

  • provides the party who published the material with an opportunity to respond to the notice and possibly make an offer to make amends.

Prior to the NSW Bill, the Act:

  • did not expressly provide for the form of a Concerns Notice

  • prevented the publisher of material from making an offer to make amends after a certain time (for example – an offer of amends could not be made after 28 days of the Concerns Notice being given or after a Defence was served)

  • had no requirements as to how long an offer to make amends needed to be kept open.

The following proposed amendments have been introduced to encourage parties to resolve any dispute prior to proceedings being commenced and include:

  • a document required to be filed or lodged to commence proceedings cannot be used as a Concerns Notice (i.e. proceedings effectively cannot be commenced without serving a Concerns Notice in the first instance)

  • the content of a Concerns Notice is not prescribed

  • the publisher of the material has more time to make an offer to make amends if further particulars of the Concerns Notice are requested. Previously, there was a strict 28-day limit to respond to a notice

  • the new laws require an offer to make amends to be open for at least 28 days prior to proceedings being commenced.

Defence Concerning an Issue of Public Interest

This new defence is modelled on the public interest defence in the UK Defamation Act 2013. The public interest defence is applicable if the defendant to a proceeding can show that:

  • the publication set out a matter which concerns an issue of public interest

  • the defendant reasonably believed that the publication of the matter was in the public’s interest.

The NSW Bill also introduces a new section to the Act which provides a non-exhaustive list of factors that may act as a guide in determining whether the defence applies (which is not intended to operate as a checklist), including but not limited to:

  • the seriousness of the defamatory imputation from the publication

  • the integrity of the source which provided the information.

The application of this defence is to be determined by a jury (if it is a trial by jury).

Maximum amount of damages for non-economic loss

This proposed amendment to the Act seeks to clarify the approach that the Court should take when awarding damages.

The amendments clarify that there is a maximum amount that can awarded for non-economic loss, regardless of whether an aggrieved party is also awarded aggravated damage. The amendments also confirm that the amount that may be awarded for non-economic loss is a scale and the maximum amount (being $250,000) should only be awarded in the most serious of circumstances.

Peer Review Defence

The NSW Bill provides a new defence if it can be established that the material is contained in a peer-reviewed publication in an academic or scientific journal.

Single Publication Rule

The introduction of the Single Publication Rule will change the way the limitation period is currently determined where there are multiple publications that are substantially the same.

The proposed amendments to the Act mean that the limitation period of one year will commence from the date that the material or publication is first made available to the public.

This amendment to the Act will also have a significant impact on the existing legislation, particularly in relation to online publications. Currently, the one-year limitation period restarts every time someone downloads material or a publication from the internet. This has the effect of a potentially endless limitation period given that material may be downloaded and re-shared long after it was first uploaded. This amendment means that for the purpose of the limitation period, the date of the first publication is the day that online material was “first uploaded for access or sent electronically to a recipient” rather than every time a publication is downloaded.

This amendment does not apply where any subsequent publication is materially different from the first publication.

Conclusion  

While it remains to be seen what impact the proposed amendments to the Act will have on future defamation proceedings, the combination of the serious harm, concerns notice and damages cap amendments may well have the effect of reducing the number of claims made and proceedings commenced, by forcing parties to focus on the real issues earlier than the current legislative regime requires.

We also anticipate that the amendments will have the desired impact on digital and online publications as they have been designed to take into account the significant changes in the way material can be published and accessed due to the boom in online publications and social media use.

The takeaway message is that understanding your position and obtaining good advice at an early stage of defamation matters will be more important than ever under the new regime.

Authors: Gavin Stuart, Rebecca Renshaw & Max Mikha