Stage 1 defamation reforms commence

On 1 July 2021, the Model Defamation Amendment Provisions 2020 (Stage 1 Reforms) will commence in South Australia, Victoria and New South Wales.

Since the introduction of the uniform defamation legislation in Australia, a number of issues have been identified in the way in which the original provisions were framed or the way in which those provisions were being applied by the Courts. The reform process is designed to address those issues.

The Stage 1 Reforms were agreed to in July 2020 by the Council of Attorneys General and range from small technical changes to significant and innovative reform. In all cases, the key purpose of the Stage 1 Reforms is to ensure that Australia’s defamation law continues to meet its main objectives.

The key changes introduced as part of the Stage 1 Reforms include:

1. a new “serious harm” test. The new serious harm test provides that a publication will not be considered defamatory unless it has caused, or is likely to cause, serious harm to the reputation of the plaintiff. The new serious harm test supersedes the old defence of triviality, which has now been abolished. This has the effect that the onus will be on the plaintiff to prove serious harm in order to bring a successful action for defamation, and so there is no need for the defendant to prove the harm was trivial. Serious harm is not defined, but is to be assessed in the circumstances of the particular case;
2. mandatory Concerns Notices. It is now mandatory for Plaintiffs to serve a Concerns Notice, and serve a waiting period, before commencing defamation proceedings. The waiting period is equivalent to the period of time given to a publisher to make a statutory offer to make amends (in most cases this is 28 days);
3. a new, stand-alone defence for publications on matters of public interest. This defence has been designed to address the fact that defendants are rarely successful in defending public interest publications using the defence of qualified privilege. This defence will be useful to media defendants, but can also be used by any person communicating on public interest matters, so long as they can prove they had a reasonable belief that the publication was in the public interest in the circumstances;
4. a new defence in respect of peer-reviewed matters published in academic or scientific journals. This new defence provides protection for academic and scientific publications in peer-reviewed journals, ensuring robust discussion can occur on academic and scientific matters;
5. a new single publication rule. When applied to online publications, the single publication rule means that the start date of the limitation period will begin to run from the date a publication is first uploaded or sent to the recipient (rather than the date on which it was downloaded); and
6. clarification regarding the operation of the cap on damages that can be awarded for non-economic loss (ie general damages). The changes provide that the cap should be interpreted as a range of damages for non-economic loss in which the top of the cap represents the appropriate award for the most serious types of defamation. Under the reforms, the cap cannot be exceeded under any circumstances. If the defendant’s conduct was particularly harmful, then the Court may still make a separate award of aggravated damages. However, the two parts of the award must be distinct and transparent.

Other minor changes include:

1. a broader definition of “employee” for the purpose of determining whether a corporation is small enough to be eligible to sue in defamation;
2. clarification about the requirements for making a valid offer to make amends;
3. simplification of the contextual truth defence to make it clear that, in order to establish the defence, a defendant may plead back substantially true imputations originally pleaded by the plaintiff;
4. reformulating the factors that a Court may take into account in determining whether the defence of qualified privilege is established so as to minimise duplication with the factors for the new public interest defence; and
5. clarification of the circumstances in which an opinion will be taken to have been based on proper material for the purpose of establishing the defence of honest opinion.

The Stage 1 Reforms will only apply in relation to the publication of defamatory matter after 1 July 2021.

In the meantime, the Stage 2 reform process is currently underway, which will focus on two key issues, being 1) the liability of online intermediaries for publication of third-party content and 2) whether absolute privilege should be extended to reports of illegal and unlawful conduct made to police, statutory investigative bodies, employers and disciplinary bodies.

If you require advice in respect of the implications the Stage 1 Reforms will have on your publications or business, or need any assistance with defamation issues, please contact a member of our team for further information on how we can assist you.

This article was written by Peter Campbell, Partner and Caitlin Surman, Senior Associate.