Defamation law in Australia has undergone significant change over the last couple of years, in particular since June 2018, when the Council of Attorneys General convened the Defamation Working Party (DWP) to undertake a national review of the model defamation provisions across Australia.1
Two years later, the Council of Attorneys General agreed that the defamation laws across Australia would be amended in an effort to address a number of the key issues identified as part of its review. This led to the introduction of the Model Defamation Amendment Provisions 2020 (Stage 1 Reforms), which commenced in a number of jurisdictions including South Australia on 1 July 2021.2
In South Australia, the Defamation (Miscellaneous) Amendment Bill 2020 (SA) made substantial amendments to the Defamation Act 2005 (SA) and some related amendments to the Limitation of Actions Act 1936 (SA).3 The Bill takes into consideration the purpose of the provisions within the Defamation Act 2005 (SA) (the Act), which were introduced on the basis that they would “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“.
A number of important changes were made by way of the Stage 1 Reforms, including the introduction of a new “public interest defence”.
The Public Interest Defence
The public interest defence was introduced to South Australia by the insertion of section 27A to the Defamation Act 2005 (SA).5 Largely based on a similar defence in the UK’s Defamation Act,6 section 27A provides that it is a defence to a publication of defamatory matter if a respondent proves that:
- the matter concerns an issue of public interest; and
- the respondent reasonably believed that the publication of the matter was in the public interest.7
In determining whether the defence is established, the Court must take into account all of the circumstances of the case,8 and may take into account a number of additional factors. Those include (but are not limited to) the seriousness of any defamatory imputation carried by the matter published; the extent to which the matter published distinguishes between suspicions, allegations and proven facts, or relates to the performance of the public functions; whether it was in the public interest for the matter to be published expeditiously; and the integrity of the information source.9
Why make the change?
Prior to the Stage 1 Reforms, the defence of qualified privilege under section 2810 of the Act was intended to cover public interest matters. However, defendants (in particular media entities) historically found it challenging to establish the defence,11 and submissions to the DWP indicated that the courts’ highly restrictive approach to the reasonableness test under that section gave it such a high threshold that the qualified privilege defence was rendered of little to no use in practice.12
In her second reading speech for the Stage 1 Reform, the Honourable Vickie Chapman, made clear the difficulties with the qualified privilege defence as it stood, and the barrier that it presented:
Firstly, the defence requires each person who received the material to have ‘an interest or apparent interest in receiving the material’. This is harder to prove than a publication that is made to the general public.
Secondly, the list of factors to be considered when deciding if the conduct was reasonable is often applied as a checklist of steps the media should have taken, rather than simply guidance as to relevant consideration. Courts apply the standard of reasonableness in a very stringent way and often apply the benefit of hindsight.
Thirdly, journalists often rely on confidential sources and so in litigation they will refuse to reveal the identity of their informant, consistent with their ethical and professional obligations. A use of confidential sources is sometimes used as an argument that a publisher has failed to meet the standard of reasonableness.13
As a result of the Stage 1 Reforms, the qualified privilege defence was amended to narrow the list of factors assessing reasonableness, such that it is no longer necessary to provide that the matter published concerned an issue of public interest. Instead, the new public interest test was inserted in the Act in an effort to provide additional protection for journalists and media organisations, particularly those publishers whose content may be considered controversial from a governmental or authoritative perspective.
The amendments are also intended to encourage freedom of expression and discussion of public interest matters. In many respects, this is nothing new – keeping in mind that defamation law in general is designed to find a balance between freedom of expression and protecting an individuals’ right from personal attack on their reputation. That said, whilst this amendment is expected to afford some further protection for journalists, it does not provide for unrestricted freedom. To successfully defend a claim, publishers will still need to prove they had a reasonable belief that the publication was in the public interest.14
What does the public interest defence look like in practice?
No South Australian Court has yet considered the application of the new public interest defence. A case currently before the Federal Court of Australia may be the first to consider it in Australia.
In mid-2021, Lachlan Murdoch, the Fox Corporation CEO, filed a defamation action against Private Media, claiming that one of its subsidiaries, Crikey, had published a defamatory article in respect of Mr Murdoch, titled ‘Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator’. Mr Murdoch claims that the article contains defamatory statements which name his family as the “unindicted co-conspirators” of the insurrection at Capitol Hill.15
Crikey has reportedly relied upon the new public interest defence in its pleadings.16 Will Hayward, CEO of Private Media, has stated that “Crikey did not believe it should be prevented by law from stating honestly held opinions, as an act of free speech, on a matter of obvious and high public interest“.17
The matter is still before the Court and has not yet been set down for trial.18
Following on from the Stage 1 Reforms, the Standing Council of Attorneys-General (formerly the Meeting of Attorneys-General) is now progressing with the Stage 2 Reforms,19 which will focus on two key issues:
- the liability of internet intermediaries for defamatory material published online by third-party users; and
- whether absolute privilege should be extended to reports of illegal and unlawful conduct made to police and statutory investigative bodies, employers, and disciplinary bodies.20
Submissions for the Stage 2 Review closed on 9 September 2022, and the review of those submissions is currently underway – so watch this space.21
This article was written by Rebecca Sandford, Special Counsel and Simone Basso, Solicitor, and reviewed by Peter Campbell, Partner.
1South Australia, Parliamentary Debates, House of Assembly, 14 October 2020 (the Hon V.A. Chapman).
4South Australia, Parliamentary Debates, House of Assembly, 2 March 2005, 1835.
5Model Defamation Amendment Provisions 2020 (SA).
6Defamation Act 2013 (UK) s4.
7Defamation Act 2005 (SA) s27A(1).
8Defamation Act 2005 (SA) s27A(2).
9Defamation Act 2005 (SA) s27A(3).
10This defence provided that, in determining whether a publisher’s conduct was reasonable in the circumstances, regard was to be had to a number of factors which reflect a similar list to those mentioned above in respect of the new public interest defence.
11Department of Communities and Justice (NSW), ‘Council of Attorneys-General: Review of Model Defamation Provisions’ (Discussion paper, February 2019) 27.; see also Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, - (McHugh J).
12Department of Communities and Justice (NSW), ‘Council of Attorneys-General: Review of Model Defamation Provisions’ (Discussion paper, February 2019) 27.
13South Australia, Parliamentary Debates, House of Assembly, 14 October 2020 (the Hon V.A. Chapman).
14Defamation Act 2005 (SA) s27A.
15Isobel Roe, ‘Lachlan Murdoch’s bid to strike out parts of Crikey defamation defence fails’, ABC News (Web Page, 21 October 2022) <https://www.abc.net.au/news/2022-10-21/lachlan-murdoch-crikey-defamation-defence-strike-out/101562412>.
16Kalila Welch, ‘Crikey to uphold new public interest defence in Murdoch defamation trial’, Mumbrella (Web Page, 23 September 2022) <https://mumbrella.com.au/crikey-to-uphold-new-public-interest-defence-in-murdoch-defamation-trial-757492>.
18Roe (n 13).
19See Department of Communities and Justice (NSW), ‘Stage 2 Review of the Model Defamation Provisions, Part A: liability of internet intermediaries for third party content’ (Background Paper, August 2022).
20Department of Communities and Justice (NSW), ‘Attorneys-General Review of Model Defamation Provisions – Stage 2’ (Discussion Paper) 6.
21‘Standing Council of Attorney’s General’, Attorney-General’s Department (Web Page) <https://www.ag.gov.au/about-us/who-we-are/committees-and-councils/standing-council-attorneys-general>.