Universities and defamation: a new defence clears some space in the defamation minefield

The university sector is particularly vulnerable to the cost, distraction and exposure that arise from Australia’s plaintiff-friendly defamation laws. The principles that universities foster and value – the contest of ideas, robust debate, commitment to criticism and diversity of views – also open the door to defamation claims. The sheer volume of discussion and publications across a breadth of mediums, from passionate students and staff, adds to the exposure.

Reforms to Australia’s Uniform Defamation Laws will soon be adopted nationwide, with New South Wales recently becoming the first State to pass the amendments through its State Parliament. The reforms followed a lengthy consultation process which you can read about here and include key amendments to the operation of the statutory cap on damages, as well as introducing a ‘single publication rule’ (significant for online publications in particular) and a ‘serious harm threshold’, amongst other changes. A second suite of reforms dealing with digital platforms is planned for consultation in 2021.

New defence for scientific or academic peer review

The reform process has recognised the importance of scientists and academics expressing their views on peer reviewed matters, and being able to freely scrutinise, inquire and investigate material without the threat of defamation litigation. One of the reforms is a new defence for scientific or academic peer review.

Under the changes there will be a complete defence for publication of defamatory matter where:

• it was published in a scientific or academic journal,
• relating to a scientific or academic issue, and
• an independent review of the matter’s scientific or academic merit was carried out prior to publication by a party with expertise in the relevant scientific or academic field.

There will also be a defence for any assessment of the defamatory matter published in the same journal by the peer reviewer, as well as any fair summary or fair report of the matter published in the journal.

The defence will only be defeated if the plaintiff proves that the defamatory matter or assessment was not published “honestly for the information of the public or the advancement of education.”

Until now, academic publishers have relied on the more difficult defences of truth, honest opinion or qualified privilege. In the areas in which it operates, the new section 30A will provide a tailored and more reliable means of defending matters of legitimate scientific or academic inquiry. This will provide academic publishers with a greater level of comfort in managing defamation risk.

But defamation exposure still looms large

Whilst section 30A will provide a defence when threats are made or proceedings commenced over academic publications. There are a number of other areas of a university operation where we see exposure to defamation. There are many areas that would not fall under the new defence, including our most recent uni-defamation engagements: 

• Responding to action taken in relation to an academic work-in-progress, before it had even undergone examination and review. In this case a participant in research threatened an injunction to prevent a student’s work from progressing to the point where section 30A might apply.
• Dealing with the fallout from statements made by university staff and students, expressing a diversity of views in publications and lectures.
• Advising regarding complaints, threats and actions based upon comments and engagement in university social media.

Universities continue to feature as defamation defendants, including:

• Proceedings commenced by a PhD candidate alleging defamatory commentary by the University in relation to her exclusion from the program.
• A claim by a student that disciplinary action in relation to a breach of the University’s Code of Conduct was defamatory.
• A stoush between two Professors of the same University over comments made as to their respective contributions to the research centre.
• A lecturer making a claim of defamation following their dismissal over the sharing of culturally inappropriate lecture materials.

The JWS media team is a top-rated national speciality which is described as being “experienced, practical, commercial in approach and cost effective”. We advise and represent Australia’s leading universities, private tertiary institutions and the Group of Eight organisation.