From 1 July 2021, Victoria,[i] New South Wales,[ii] South Australia[iii] and Queensland[iv] introduced changes to the defamation laws.
Key changes brought about by the Model Defamation Amendment Provisions 2020 [“New Defamation Laws”] include the following which are discussed as follows:
- the serious harm element;
- the single publication rule;
- the expanded definition of employees;
- new requirements for a Concerns Notice;
- the new public interest defence;
- clarification of the honest opinion defence;
- modified qualified privilege defence;
- academic publications defence;
- damages.
The changes to defamation law will apply in these states to defamatory material published on or after 1 July 2021. All remaining jurisdictions are to pass the amendments as soon as possible thereafter.[v]
Serious harm element
To have a claim for defamation, in addition to establishing the following elements:
- the publication must be published to a third party,
- the publication must identify the person said to be defamed,
- the imputations arising from the publication must be defamatory in that the imputations lower the person’s reputation in the estimation of others,
an aggrieved person must also now prove that the publication of defamatory matter has caused, or is likely to cause, serious harm to the reputation of that person.[vi]
The New Defamation Laws do not define what constitutes serious harm in relation to an individual. In the case of companies which are not excluded from taking action for defamation, serious harm is suffered if the publication has caused, or is likely to cause, the corporation serious financial loss.[vii]
The UK Supreme Court’s unanimous interpretation of UK serious harm provision in the case of Lachaux v Independent Print Ltd [2019] UKSC 27 will be persuasive to the interpretation of the provision in Australia. The UK Supreme Court held that whether a publication causes “serious harm” or is likely to cause “serious harm” requires the court to consider “the consequences of the publication, and not the publication itself”.[viii] In addition to claiming that the inherent tendency of the words of the publication cause damage to their reputation, the plaintiff must also point to either some “historic harm, which is shown to have actually occurred”[ix] or “probable future harm”.[x]
When can an aggrieved person commence action for defamation?
Subject to exceptions, an action for defamation must not be brought after the expiration of 1 year from the date of publication.[xi]
With respect to electronic publications, under the New Defamation Laws, the date of publication for the purpose of assessing the limitation period is the date on which it is uploaded for access or sent to the recipient, not when it is downloaded or received.[xii]
The New Defamation Laws also introduced a single publication rule.[xiii] The single publication rule applies if:
- a person [“the first publisher”] publishes matter to the public that is alleged to be defamatory; and
- the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.
Any claim for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.
An associate of a first publisher is:
- an employee of the publisher;
- a person publishing matter as a contractor of the publisher;
- an associated entity (within the meaning of section 50AAA of the Corporations Act) of the publisher (or an employee or contractor of the associated entity).
An aggrieved person can still apply for an extension of time to commence action for defamation.[xiv]
Who can take action for defamation?
A company can bring an action in defamation if it is a not-for-profit, or has fewer than 10 employees and is not an associated entity of another corporation, and is not a public body.[xv]
Under the New Defamation Laws, the definition of “employee” will extend to any individual, including independent contractors who are engaged in the day to day operations of the corporation other than as a volunteer, and subject to the control and direction of the corporation.[xvi]
New requirements for a Concerns Notice
Defamation proceedings cannot be commenced without a concerns notice in respect of the publication(s) of concern.[xvii] A statement of claim can no longer be used as a concerns notice.
A concerns notice must:
- be in writing;
- specify the location where the alleged defamatory matter can be accessed;
- inform the publisher of the defamatory imputations that are or may be carried;
- inform the publisher of the harm that the aggrieved person considers to be serious harm caused, or likely to be caused, by the publication of the matter in question.[xviii]
In preparing its statement of claim, an aggrieved person(‘the ‘plaintiff’) is required to rely on the imputations as particularised in their concerns notice, or imputations that are substantially the same as those particularised in the concerns notice.[xix]
New ’public interest’ defence
It will be a defence to the publication of defamatory matter if the publisher of that matter (the ‘defendant’) proves that the matter concerns an issue of public interest and the defendant reasonably believed that the publication of the matter was in the public interest.[xx]
In determining whether the defence is established, a court will consider all of the circumstances of the case. The New Defamation Laws list factors a court may consider, including:
- 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;
- the sources of the information, including the integrity of the sources and whether there is a good reason to keep the source’s identity confidential;
- steps taken to verify the information in the matter published;
- the importance of freedom of expression in the discussion of issues of public interest.
The New Defamation Laws do not define what constitutes an issue of public interest. Further, the defence does not require the defendant to prove the truth of the matter published. Unlike other defences, the New Defamation Laws do not include a provision which states that the defence is defeated if the plaintiff proves the publication of the defamatory matter was actuated by malice.
Clarification of the ‘honest opinion’ defence
The New Defamation Laws clarify the honest opinion defence. For the purposes of the honest opinion defence, an opinion is based on proper material if:
1. the material on which it is based is:-
(a) set out in specific or general terms in the published matter;
(b) notorious [in the sense that the material is well-known to the public];
(c) accessible from a reference or link in the publication; or
(d) otherwise apparent from the context in which the matter is published; and
2. the material is substantially true, or published on an occasion of absolute or qualified privilege, or a fair report of proceedings of public concern or the matter was contained in a public document or a fair summary or extract thereof.[xxi]
Modified ‘qualified privilege’ defence
The statutory qualified privilege defence is modified – including with modifications to the list of factors when determining whether the conduct of the publisher was reasonable. The factors in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, now include the following:
- 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;
- the nature of the business environment in which the defendant operates;
- whether it was appropriate in the circumstances for the matter to be published expeditiously;
- any other steps taken to verify the information in the matter published.
It is not necessary to prove that the matter published concerned an issue of public interest to establish this defence.[xxii]
Academic publications defence
It will be a defence to the publication of defamatory matter if the defendant proves that the matter was published in a scientific or academic journal, the matter relates to a scientific or academic issue, or has been independently reviewed for scientific or academic publication.[xxiii]
The defence is defeated if, and only 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.[xxiv]
Damages
With respect to damages for non-economic loss (reputational damage), there is still a statutory cap which is reviewed on an annual basis. As at 1 July 2021, the maximum damages for non-economic loss that may be awarded in defamation proceedings is $432,500.00.[xxv]
The maximum amount is to be awarded only in a most serious case. In addition to the amount of non-economic loss, a plaintiff can also be awarded aggravated damages where the defendant’s conduct has exacerbated the hurt suffered by the plaintiff.[xxvi]
Authored by Peter Divitcos, Lawyer, Stephens Lawyers & Consultants
© Stephens Lawyers & Consultants. 27 July 2021
This article is not intended to be a substitute for obtaining legal advice.
For further information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
Fax: (03) 8636 9199
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
PO Box 16010
Collins Street West
Melbourne VIC 8007
[i] Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020, Part 5, https://content.legislation.vic.gov.au/sites/default/files/2020-11/591251bs1.pdf.
[ii] Defamation Amendment Act 2020 No 16 (NSW), https://www.legislation.nsw.gov.au/view/pdf/asmade/act-2020-16.
[iii] Defamation (Miscellaneous) Amendment Act 2020 (SA), https://www.legislation.sa.gov.au/LZ/V/A/2020/DEFAMATION%20(MISCELLANEOUS)%20AMENDMENT%20ACT%202020_41/2020.41.UN.PDF.
[iv] Defamation (Model Provisions) and Other Legislation Amendment Bill 2021, https://www.legislation.qld.gov.au/view/html/bill.first/bill-2021-011,
[v] Ibid.
[vi] Model Defamation Amendment Provisions 2020 [“New Defamation Laws”] at clause [6].
[vii] Ibid.
[viii] Lachaux v Independent Print Ltd [2019] UKSC 27, at [14].
[ix] Ibid.
[x] Ibid.
[xi] Limitation of Actions Act 1958 (Vic), section 5.
[xii] New Defamation Laws, at clause [41], 1A. Limitation of Actions Act 1958 (Vic), section 5.
[xiii] Limitation of Actions Act 1958 (Vic), section 5A.
[xiv] Limitation of Actions Act 1958 (Vic), section 23B.
[xv] Defamation Act 2005 (Vic), section 9.
[xvi] New Defamation Laws, at clause [4].
[xvii] New Defamation Laws, at clause [8].
[xviii] New Defamation Laws, at clause [8].
[xix] New Defamation Laws, at clause [8].
[xx] New Defamation Laws, at clause [27].
[xxi] New Defamation Laws, at clause [31].
[xxii] New Defamation Laws, at clause [28].
[xxiii] New Defamation Laws, at clause [30].
[xxiv] New Defamation Laws, at clause [30].
[xxv] Victorian Government Gazette, No. S 333, 25 June 2021, p 1 http://www.gazette.vic.gov.au/gazette/Gazettes2021/GG2021S333.pdf#page=1
[xxvi] New Defamation Laws, at clause [34].