Earlier this year, an article in the New York Times labelled Australia the “defamation capital of the world”. When you take into account the multitude of cases which have come through the State and Federal Courts (defamation is 10 times more common in New South Wales than in the UK), it’s not hard to see why. Cases such as Geoffrey Rush v Daily Telegraph, Rebel Wilson v Bauer Media and even Sarah Hanson-Young v David Leyonhjelm have shown just how common and lucrative defamation can be. However, proposed changes to defamation laws would signal a major overhaul. Further, if these changes go ahead, they would introduce defences which would mean greater freedom for media publications. In this article, we’ll outline these changes and the broader effects they will have.
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Defamation laws as we know them have only been in existence for 15 years. In 2005, defamation laws amongst all the Australian States were unified. This means that all States administer the Defamation Act 2005 (Cth), aside from a few minor tweaks. Notably, the Defamation Act abolished the distinction between libel and slander, replacing both with defamation. Further, this Act only provided a limited number of defences to a defamation action including justification (truth), triviality, absolute privilege and qualified privilege (information published under a moral duty). These laws also shift the onus of proof onto the defendant, rather than requiring the plaintiff to prove that they have been defamed.
New challenges
In 2005 when these laws first came into effect, social media hadn’t become the focal source of communication and information sharing. The 24-hour news cycle hadn’t taken off quite yet either. However, changes in the way people share information have meant that laws surrounding defamation need to he updated to reflect modern times and cultural sentiment around journalistic freedom. In fact, more and more cases are coming before the Court based on defamatory social media posts. This also means that there are more cases in the Courts which are between individuals, rather than media outlets.
Proposed changes
The Council of Attorneys General (CAG) have released a paper outlining Model Defamation Amendment Provisions (MDAPs). This comes after calls from media publications and politicians to make defamation laws more compatible with freedom of speech. There is also a drive to curb the high volume of defamation cases in the Courts. Some of the proposed changes include:
Introducing a new ‘public interest’ defence
This defence would be mainly applicable to journalists publishing stories that amount to ‘responsible communication in the public interest’. This defence would be similar to qualified privilege. The only real difference between this defence and qualified privilege would be the malice exception. A jury would also determine the outcome, rather than a Judge.
A new single publication rule
Defamation claims can only be made within 12 months of the defamatory content being published. This is called the ‘limitation period’. However, this limitation period can start when something is republished or downloaded. Essentially, suing for defamation based on an internet article is limitless.
A single publication rule would enforce a stricter time limit on internet content. This is because the 12 month limitation period would take effect from the first date of publication. This would lessen the number of cases in which are based on content published more than 12 months ago.
Compulsory Concerns Notice
Concerns Notices are effectively Cease and Desist Letters which are unique to defamation, in that they invite the recipient to ‘make amends’ before proceedings are commenced. This can be through issuing a public apology or compensation and give the recipient 28 days to either accept or reject this proposition. These give the recipient a chance to settle the dispute before it ends up in Court. Further, if the publisher makes a reasonable offer which is rejected, it can be used as a defence later in Court.
However, many defamation cases are commenced without a Concerns Notice being issued. This is often the case where the limitation period is close to lapsing. Proposed changes would mean that would-be plaintiffs will have to issue a Concerns Notice before litigation commences. This would lessen the number of defamation disputes which end up in Court. Further, issuing a Concerns Notice would ‘pause’ the limitation period.
The publication must cause serious harm
New changes would also raise the threshold for defamation claims. In this sense, a plaintiff would have to prove that serious harm to their reputation was caused. Currently, the triviality defence can be raised where the harm caused is minor, or trivial. However, as the CAG notes, this defence rarely succeeds. This would effectively shift the onus of proof to the claimant from where it rests currently – on the defendant to prove they did not defame someone.
Possible effects
These changes would see the most significant reforms to modern defamation laws since their inception in 2005. The effects would be two-fold, firstly in that less cases would proceed to trial and settle out of Court. These changes would also see increased press freedom for journalists, who have argued that defamation laws as they stand create a barrier to thorough investigative journalism.
