If at first you don’t succeed… Australia’s defamation law reform gets the green light

28 July 2020

At its meeting on 27 July 2020, the Council of Attorneys-General (Council) approved the Model Defamation Amendment Provisions (MDAPs) which had been the subject of consultation and discussion since early 2019. The Council has committed to enacting and commencing the amendments as soon as possible in each jurisdiction.

The reforms address a number of concerns arising from high profile judgments in recent years, and it is also hoped they will mean defamation laws better reflect the changing media landscape and increased incidence of publications online and via social media, which has seen defamation laws used to pursue minor claims where costs to the parties (and the resultant use of public resources) are disproportionate to the harm suffered by the plaintiff.

Broadly, the major changes include:

  1. the introduction of a serious harm threshold with respect to damage suffered from the allegedly defamatory publication (i.e. making serious harm an element of the cause of action for defamation);
  2. the introduction of a new “public interest” defence based on UK law (discussed further below), as well as a new defence for peer reviewed matters published in scientific or academic journals;
  3. the introduction of the “single publication rule” into the Australian defamation regime (discussed below);
  4. amendments to the cap on damages to more clearly establish that the cap on non-economic loss sets the upper limit of a scale, and that aggravated damages are awarded separately (and do not operate to remove the cap);
  5. a new requirement that parties must issue a concerns notice prior to commencing a defamation claim (including amendments addressing the form, content and timing of such notices and the requirements for responding offers to make amends);
  6. enabling defendants to “plead back” imputations relied on by the plaintiff in support of a contextual truth defence; and
  7. providing additional clarity with respect to a number of matters in the existing Acts, including the defence of honest opinion, the approach to be taken to assessing employees for the purposes of claims by excluded corporations, some costs related matters and to allow for service by email.

The changes will apply to defamatory matter published after the commencement of the MDAPs in each jurisdiction, so existing proceedings will continue under the existing regime.

Background

In November 2004, the Attorneys General of the various States and Territories agreed to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation, called the Model Defamation Provisions (MDPs).

The MDPs were prepared by the Australasian Parliamentary Counsel’s Committee and each State and Territory subsequently enacted legislation in 2005 to give effect to the MDPs. Each State and Territory is a party to the Model Defamation Provisions Intergovernmental Agreement, which establishes the Model Defamation Law Working Party (DWP). The DWP’s role and functions include reporting to the Council on proposals for amendment to the MDPs.

In 2018, the Council reconvened the DWP to review the MDPs. The review, led by New South Wales, was conducted in 2019 and 2020 and concluded with a recommendation to the Council for certain amendments prepared by the Australasian Parliamentary Counsel’s Committee be made to the MDPs. The Council’s Review of Model Defamation Provisions Discussion Paper was released for public consultation in February 2019, and the draft MDAPs were then released for consultation in December 2019. Further changes arising from that consultation were made to the MDAPs in early 2020, and then considered and ultimately approved by the Council.

The Council has now agreed that each State and Territory will support the enactment of the MDAPs (as published here) in each jurisdiction.

Key changes

Serious Harm Threshold

The purpose of this amendment is to encourage the early resolution of defamation proceedings by enabling loss and damage to be dealt with as a threshold issue, and to ensure that public resources are appropriately directed to cases where the costs of pursing a claim will be proportionate to the loss or damage suffered.

Under the current statutory regime, there is no distinction between slander and libel, and all publications of defamatory matter are actionable without proof of special damage. In this respect it must be noted that the approach to damages in defamation actions is unusual, compared to other torts, in that damage is presumed if the cause of action is made out, and does not need to be separately proved. However, a defendant could avoid an award for damages if it proved that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (the “triviality” defence).

The introduction of a serious harm threshold brings Australia’s regime in line with the approach taken in the UK Defamation Act, and means it will now be an element of the cause of action that the plaintiff must prove that the defamatory matter has caused, or is likely to cause, serious harm to the plaintiff’s reputation. Corporations who have rights to sue in defamation must prove “serious financial loss”.

The defence of triviality has also been removed in light of the introduction of this threshold (i.e. there is no need for the defendant to provide the harm was trivial, as the plaintiff must instead prove that the harm was serious).

Public Interest Defence

The existing Australian defamation law regime provides for a defence of qualified privilege for the publication of defamatory matter where the defendant proves that the recipient of that material had an interest (or apparent interest) in having information on some subject, the material was published in the course of giving the recipient information on that subject, and the defendant’s conduct in publishing that material was reasonable in the circumstances.

The purpose of the statutory defence was to extend the (narrower) general law defence of qualified privilege to circumstances where there was not necessarily a reciprocity of duty and interest between publisher and recipient, which was required under the general law. However, the statutory defence has been largely unsuccessful in broadening the approach taken by the courts to publications with respect to issues which may be of public interest.

The UK’s statutory public interest defence is slightly different, and requires publishers of allegedly defamatory material to prove not only that the statement was a matter of public interest, but also that they believed that publishing it was in the public interest.

The new public interest defence under the MDAPs provides for a comparable defence to that in the UK Defamation Act, save that the language in the MDAPs has been recast to reflect the language used in the Australian regime (which refers to the publication of defamatory matter, rather than statements on a matter of public interest) and the provision also includes a list of factors which the Court may take into account when considering whether the defendant’s conduct was reasonable (something which does not appear in the UK Act). The MDAPs also now expressly confirm that the factors are intended to provide some non-exhaustive guidance, and that not all (or indeed any) of the factors must be met for the defence to succeed; nor are they intended to operate as a checklist of relevant factors (which had tended to be the approach taken by the Courts with respect to the existing qualified privilege defence).

As identified in the explanatory notes to the MDAPs, one of the objects of the MDPs was to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance. This new defence is aimed at promoting that object. It remains to be seen, however, whether the new defence will have the anticipated effect or if it will, as suggested by some commentators, be of limited benefit in practice.

Single Publication Rule

Another key change is the introduction of a single publication rule – an amendment which media stakeholders have been seeking for some time.

Currently, the publication date for online material is the date on which that material is downloaded, and not the date on which it was first published. This meant that whilst limitation periods in defamation law are generally short (one year, capable of being extended to a maximum of three years) to reflect the fact that harm arising from a defamatory publication usually occurs in close proximity to the publication, the limitation periods for material published online could in practice extend indefinitely, as they would commence each time that a publication is downloaded, even if that occurred years later and well after the expiry of the 12 month limitation period.

During the consultation on the MDAPs, stakeholders including the Law Council of Australia strongly recommended the introduction of the single publication rule, to prevent the disadvantage and prejudice which often resulted to a defendant from the existing approach.

The new approach under the MDAPs will mean that the start date of the one year limitation period will commence to run from the date of the first publication and, in the case of online or electronic publications, the date of first publication will – for the purposes of determining the limitation period only – be treated as the date on which it is uploaded or sent to the recipient, rather than when it is downloaded or received. This change does not affect the law concerning when the elements for a cause of action are established or the choice of law for any claim.

Non-Economic Damages Cap

The existing regime provides for a maximum amount of damages that may be awarded for non-economic loss in defamation proceedings (which, as noted above, do not require material loss to be proved).

Although the existing Acts provide that a court may order a greater amount than the maximum amount if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate warrant an award of aggravated damages, there have been inconsistent approaches taken to that provision.

One approach (reflective of the original purpose behind the provision) was that the section set a scale or range of damages, with the maximum amount to be reserved for the worst kinds of damage, even if the publication does not warrant an award of aggravated damages. However, in some cases (most notably Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154), the Court took the view that the maximum amount operated as a cap which could be set aside if aggravated damages were awarded.

To address that confusion and those divergent views, the MDAPs now confirm and reaffirm the initial intention behind the provision, namely that the maximum amount sets a scale or range rather than a cap, with the maximum amount to be awarded in only the most serious cases. The MDAPs also require aggravated damages awards to be made separately, so the cap will continue to apply for non-economic loss, even if aggravated damages are awarded.

Although this amendment is expected to prevent excessive damages awards for non-economic loss (such as have been seen in a number of recent high profile cases), parties are still able to seek damages for actual economic loss including where the sums claimed exceed the statutory cap. Any such award will continue to be subject to the plaintiff actually proving economic loss.

What next?

This announcement denotes the conclusion of Stage 1 of the Council’s review of the Model Defamation Provisions. Once enacted, the amendments are expected to “reset defamation law to strike a better balance between protecting individual reputations and freedom of expression, particularly regarding matters of public interest”.1

Given the Council’s stated intention to introduce the reforms quickly, we expect to see the changes brought into force in the near future.

The Council has also agreed to progress a second stage reform process which will focus on the responsibilities and liability of digital platforms for defamatory content published online, as well as a handful of other matters that the Council will ask the Defamation Working Party to consider.

At the next Council meeting, agreement will be sought to release a Stage 2 discussion paper for public consultation, which is expected to address issues such as whether social media companies and other “secondary publishers” ought to be held liable in defamation as publishers of comments authored by third party users on their platforms (a topic of recent judicial consideration in a number of cases, including Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102).

In summary, whilst Stage 1 of the Model Defamation Law reform process has now concluded, further amendments are expected in the not too distant future, so we will continue to watch this space with interest!

This article was written by Peter Campbell, Partner and Rebecca Sandford, Special Counsel.


1 https://www.ag.gov.au/sites/default/files/2020-07/Council%20of%20Attorneys-General%20communiqu%C3%A9%20%E2%80%93%20July%202020.pdf

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