Keeping up with the times: an overhaul of defamation laws is coming

By Brett Bolton and Samantha Clements / 30 July 2020

The need for defamation law reform in Australia has been well publicised, particularly in light of recent high profile cases in the media (most notably the Geoffrey Rush case). The current laws have been in place for 15 years and must be overhauled to keep up with significant generational shifts and changes in the way we communicate, especially on digital platforms.

Last year, we wrote an article on the Discussion Paper released by the Council of Attorneys-General (COAG), which was undertaking a review of the national model defamation laws. The COAG Defamation Working Party subsequently released proposed amendments to Australia’s Model Defamation Provisions (AMDP) for public comment and received more than 70 submissions in response from the likes of media companies, digital platforms, lawyers and academics.

The COAG announced this week that it has signed off on certain amendments to AMDP. The proposed new laws are set to be enacted in state and territory legislation “as soon as possible”. NSW Attorney General, Mark Speakman (the driving force behind the COAG review) hopes that the reforms “will bring defamation laws into the modern era, improving the balance between protecting reputations and free speech.” 

A summary of the key changes include:

  • Clarification of the operation of the cap on non-economic damages

Although there is already a statutory cap on general damages (so-called “non-economic” loss) in defamation proceedings, the Court can award a higher amount in certain circumstances. There have been inconsistent approaches taken by some judges to the exercise of this power, especially relating to whether the cap can be ignored if the court decides that aggravated damages are warranted.

In what might see Geoffrey Rush’s record $2.9 million defamation payout stand for a long time, the new laws say that the maximum amount for general damages sets a scale or range (rather than a cap), with the maximum amount only to be awarded in the most serious of cases. Awards of aggravated damages will need to be separately assessed and made.

  • A new public interest defence 

A new defence of public interest will be introduced, comparable to the model that exists in UK defamation law. This defence is designed to promote one of the original objects of the defamation laws to ensure that the law of defamation does not place unreasonable limits on freedom of expression, and the publication of matters of public interest.

Although media companies and the journalists they employ were strong advocates for the introduction of this defence into Australian defamation law, the requirement on the defendant to prove that the publication was in the public interest and that he or she reasonably believed it to be in the public interest has caused some commentators to question whether the defence will operate all that differently in practice to existing defences.

  • A serious harm threshold 

The plaintiff will now need to prove the publication of the defamatory matter has caused, or is likely to cause, serious harm to his or her reputation. In an attempt to encourage the early resolution of defamation proceedings and reduce the number of frivolous claims clogging up the courts, a judicial officer (as opposed to a jury) will determine whether the threshold is established, either before or as soon as possible during the proceedings.

As a result of the new serious harm threshold test, the defence of triviality will be removed. 

  • A single publication rule 

Under the current defamation laws, a new cause of action arises every time defamatory material is “downloaded” from the internet (commonly known as the “multiple publication rule”). This means that a new limitation period starts each time a person downloads potentially defamatory material, making a mockery of the one-year limitation period that currently applies, often putting the defendant at a disadvantage.

A single publication rule will be introduced whereby the one-year limitation period for online publications will commence from the date the material is first uploaded (not each time it is downloaded). 

  • Requirement to issue a concerns notice before proceedings are commenced

A concerns notice gives the publisher of the alleged defamatory material an opportunity to make an offer of amends. It is currently not mandatory for a person to give a concerns notice to the publisher before commencing defamation proceedings. 

Under the new laws, an aggrieved person will be required to give a concerns notice and wait for the applicable period for an offer to amends to elapse before commencing proceedings. The concerns notice must also set out in detail the defamatory meanings the aggrieved person says were conveyed by the material and intends to rely on in the proposed proceedings.

  • A new defence for peer reviewed matters published in academic or scientific journals.

A defence will be introduced for defendants in circumstances where defamatory matters published in academic or scientific journals have been independently reviewed (either by the editor of the journal if they have relevant expertise or by one or more other persons with relevant expertise).

Although there is still a long way to go, the amendments to the AMDP will be seen as the start of a new chapter in Australian defamation law. If nothing else, the new laws should lead to an increase in the early resolution of matters and reduce the number of frivolous and minor claims currently clogging up the courts.

We will keep you informed of developments, particularly as the COAG has flagged its intention to release a stage two discussion paper later this year. 

For further information and discussion, please contact our Dispute Resolution team.

Brett Bolton
Brett is a Partner working across our Dispute Resolution and Competition practices.
Samantha Clements
Senior Associate
Samantha is a Senior Associate in our Dispute Resolution practice.

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