On 1 July 2021, a range of important reforms designed to update defamation laws in New South Wales were introduced. Now, just over 1 year since those changes, it’s clear that publishers have and are availing themselves of those changes.
Following the recommendations of the review into Australia’s Model Defamation Provisions, the Defamation Amendment Act 2020 No 16 [NSW] (“The Amendment Act”) was enacted and it introduced changes to the Defamation Act 2005 and the Limitation Act 1969 intended to improve the balance between protecting individual reputations and freedom of expression and adapt to new issues created by social media platforms and online publications.
Below are five key reforms enacted by the Amendment Act:
1. The introduction of a public interest defence
Section 29A of the Defamation Act 2005 provides a defence where the defendant can demonstrate that:
a) The matter concerns an issue of public interest, and
b) The defendant reasonably believed that the publication of the matter was in the public interest.
In determining whether this defence is established, the court must consider all the circumstances of the case, including:
the seriousness of the defamatory imputations,
whether suspicions, allegations and proven facts are distinguished,
whether the information relates to the performance of public functions or activities,
the integrity of the sources used, and any other steps taken to verify the information,
whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
the importance of freedom of expression in the discussion of issues of public interest.
2. The introduction of a serious harm threshold
Prior to the Amendment Act, the three elements for a cause of action in defamation were:
a) Publication was made to a third party,
b) The publication identifies the complainant, and
c) The imputations in the publication are defamatory as they lower the complainant’s reputation in the estimation of others, brings the complainant into hatred, contempt or ridicule or causes the complainant to be shunned or avoided.
Now, section 10A of the Defamation Act 2005 provides a fourth element that the publication of defamatory material about a person must have caused or is likely to cause, serious harm to their reputation. This element is to be determined by the judicial officer as soon as practicable before the trial.
3. The introduction of the single publication rule
The single publication rule now found in section 14C of the Limitation Act 1969 was introduced in response to the challenges posed by social media and online publications. Prior to the introduction of the new rule, where an article was first published online by a news organisation, and subsequently published on a social media platform, the one-year limitation period for any defamation claims would commence every time a person could or did download the content from the internet (i.e. irrespective of it having first been published many months or years earlier).
The new rule applies where:
a) The first publisher publishes defamatory matter, and
b) The first publisher, or an associate, subsequently publishes matter that is substantially the same.
In these circumstances, the one-year limitation date will apply from the date of the first publication, provided the subsequent publication is substantially the same. This means that in the above example, the limitation date would be one year after the first article was published, rather than the date that the article was published on the social media platform.
4. New Requirements for Concerns Notices
Another change relates to the service of Concerns Notice, pre-litigation. Prior to commencing defamation proceedings, the complainant must serve a valid concerns notice on the publisher. Sections 12A and 12B of the Defamation Act 2005 provide that a concerns notice must:
a) be in writing,
b) specify the location where the matter can be accessed or if practical, provide a copy of the matter,
c) inform the publisher of the defamatory imputations in the matter, and
d) inform the publisher of the serious harm to the person’s reputation.
The imputations identified in the Concerns Notice will be the only imputations the complainant will be able to rely on in any Statement of Claim commencing in respect of the matter of concern.
The amendments also prohibit defamation proceedings being commenced prior to the expiry of 28 days following service of a Concerns Notice, thereby providing the publisher a period of 28-days within to make an offer to make amends.
5. The introduction of a defence of scientific or academic peer review
Newly introduced section 30A of the Defamation Act 2005 provides for a defence to the publication of defamatory matter if:
a) the matter was published in a scientific or academic journal, and
b) the matter relates to a scientific or academic issue, and
c) an independent review of the matter’s scientific or academic merit was carried out by an editor of the journal or a person with expertise in the issues in the matter.
This defence also extends to the publication of assessments of the matter in the same journal and fair summaries or extracts from a matter of assessment. The defence will only be defeated if the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.
Generally
An understanding of the changes identified above is key if you have been defamed or have been accused of defaming someone. Feel welcome to contact BlackBay Lawyers for a confidential discussion and to see how we can assist.
