Much talk, now action: defamation law is here

New South Wales Parliament has today passed the Defamation Amendment Bill 2020. This makes NSW, which has been described as “Australia’s defamation capital”, the first state to legislate long-awaited reforms to Australia’s uniform defamation laws, with other states to follow. The NSW amending Act is expected to commence soon, following assent.

The amendments implement the Model Defamation Amendment Provisions which are the product of a review and public consultation by the Defamation Working Party, driven by the New South Wales Department of Communities and Justice, and were formally agreed by the Council of Attorneys-General on 27 July 2020. The changes are designed to:

• Reset the balance between providing fair remedies for harm and protecting freedom of expression -especially where publications involve matters of public interest;
• Modernise uniform defamation laws to reflect the rise in online publications since 2005;
• Reduce litigation over minor matters; and
• Fix aspects of the legislation which were not operating as intended.

What are the key changes?

Serious harm threshold

The new provisions include a “serious harm” threshold for all defamation claims. The question of whether a plaintiff has suffered serious harm may now be determined as a threshold issue as soon as practicable before the trial. This element of the cause of action requires individuals to prove that defamatory matter has caused, or is likely to cause, serious harm to their reputation. Excluded corporations must prove serious financial loss. The defence of triviality, which was typically run (without success) by a defendant at trial, has been removed because it is intended that the serious harm threshold will filter out trivial claims.

Single publication rule for multiple publications

The introduction of a single publication rule amends the Limitation Act 1969 (NSW) to provide that the limitation period for defamation claims is from the date of the first publication, unless the subsequent publication is materially different. Courts have the power to extend this period by up to three years where the plaintiff satisfies the court that it is ‘just and reasonable to allow an action to proceed’.

Under the existing legislation, electronic content is taken to be ‘published’ each time a person downloads the material. A download can occur years after first publication - to effectively circumvent the limitation period - causing open-ended liability. The amendments provide that the publication of electronic material occurs when the material is first uploaded or sent to a recipient by its original publisher and for that publisher the limitation provisions run from that date.

Concerns notices

The amended provisions make it mandatory for the aggrieved person to issue a concerns notice to allow the time for an offer to make amends to expire before they are able to commence defamation proceedings. As well as making it a prerequisite, there are amendments in relation to the form, timing, content and response to the concerns notice process.

New public interest defence

The amendments introduce a public interest defence. The purpose of the new defence in section 29A is to improve protection for journalists and media outlets where a publication concerns a “matter of public interest” and the defendant had a reasonable belief that it is in the public interest to publish the matter.

The hope is that this new bespoke defence will provide greater protection than the qualified privilege defence, which has proven singularly unhelpful for news publishers, even where they have a good argument that they are involved in legitimate responsible reporting. However, there is a concern that a list of non-mandatory factors that the court may take into account will serve as tripwires for anyone attempting to establish the defence.

Repair of the “contextual truth” defence

The contextual truth defence is designed to operate where there is a publication which has a number of defamatory meanings, some which are substantially true and others which are not, but the untruthful imputations do no further harm to the plaintiff’s reputation than the true imputations.

Deficiencies in drafting meant that plaintiffs could plead imputations in such a way as to defeat the contextual truth defence.

This reform addresses these deficiencies in the hope that the defence will operate as intended.

Clarifying the cap on economic damages

Divergent judicial interpretations of the statutory maximum for non-economic damages in recent years have seen the maximum set aside where aggravated damages are awarded. There has also been dispute as to whether the cap represented the top of a range for the most serious cases, or a ceiling on damages. The amendments clarify that the maximum amount is to be awarded only where the defamation is at the upper end of the scale and that aggravated damages sit on top of the maximum, but do not remove the maximum for non-economic damages.

Still to come…

These amendments are the first of two stages of defamation law reforms. The Council of Attorneys-General has foreshadowed a second stage of reforms, which will focus on the responsibility and liability of digital platforms for online content. It is expected a discussion paper concerning these issues will be released for public consultation by the end of 2020.