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New NSW defamation laws: A shift in balance between free speech and the protection of individual rights?

12 August 2020

#Dispute Resolution & Litigation, #Technology, Media & Telecommunications

New NSW defamation laws: A shift in balance between free speech and the protection of individual rights?

On 6 August 2020, the Defamation Amendment Bill 2020 was passed in the NSW Parliament to amend the Defamation Act 2005 and the Limitation Act 1969. The amending Act, which will commence following assent, will implement a number of major changes to defamation law in NSW, and it is expected that other states will follow suit.

Background to the reforms

In November 2004, all Australian states and territories agreed to enact uniform model provisions in relation to defamation law. These uniform provisions are known as the Model Defamation Provisions (MDPs) and were enacted in NSW in the Defamation Act 2005 (2005 Act).

The passing of the Defamation Amendment Bill 2020 follows the first stage of a national review of the MDPs. The review was conducted in 2019 and 2020 and led by NSW. The review involved wide-ranging consultations with media companies, peak legal bodies, academic, digital platforms and lawyers representing both plaintiffs and defendants.

Following the review, the Council of Attorneys-General agreed, in July 2020, to support the enactment of the Model Defamation Amendment Provisions 2020 by each State and Territory.

The rationale for the changes

The amendments constitute the first update to Australia’s defamation laws since 2005.

In light of the feedback from the public consultation, the amendments are intended to create better balance between the goals of protecting individual reputations and promoting freedom of expression, particularly where matters of public interest are concerned. The amendments are also designed to recognise the changes in the nature of publications since 2005, particularly the increase in online publications, and to decrease the number of minor matters that reach litigation.

Key changes

Below are the key changes to the NSW defamation law under the amendments.

Introduction of a new public interest defence

As part of the review of the MDPs, a number of stakeholders submitted that a public interest defence was needed to enable journalists and media organisations to publish matters of public concern.  

The amendments have introduced a public interest defence which is modelled on the defence set out in the Defamation Act 2013 of the United Kingdom (UK Defamation Act). In particular, the new section 29A of the Defamation Act provides for a defence to the publication of defamatory matters where the defendant can prove that the matter concerns an issue of public interest and that they reasonably believed that the publication of the matter was in the public interest. The section sets out a number of factors that the court may take into account in determining whether the defence has been made out, including the seriousness of any defamatory imputation in the publication and the integrity of the sources of the information.

Introduction of a serious harm threshold

Following the amendments, all defamation claims will be subject to a “serious harm” threshold. As with the public interest defence, this amendment is also similar to a provision in the UK Defamation Act.

Under the new threshold provision (which will become section 10A of the amended Defamation Act), it will be necessary for the plaintiff to prove that the defamatory publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation. Where the plaintiff is an excluded corporation, it must also show that the publication has caused, or is likely to cause, serious financial loss.

The amendments also set out a procedure for determining whether the serious harm element is established, including providing that a party may apply to have the issue determined before the trial for the proceedings commences. This is intended to promote the early resolution of defamation proceedings by enabling the issue to be addressed as a threshold issue.

Clarification of the cap on non-economic damages

This amendment was made to address inconsistencies in the approach taken by the courts to section 35 of the 2005 Act, which provided for a maximum amount of damages that may be awarded for non-economic loss in defamation proceedings. The inconsistency related to whether that section sets a range or scale of damages, with the maximum amount to be awarded only in the most serious case, or whether it operates as a cap that may be set aside in circumstances where an award of aggravated damages is warranted.

The amendments confirm that the maximum amount that may be awarded for non-economic loss sets a range or scale, rather than a cap, with the maximum amount to be awarded only in the most serious case. Any award for aggravated damages must be made separately, such that the range or scale for damages for non-economic loss continues to operate even where aggravated damages are awarded.

Mandating of concerns notices

Under the amendments, it is a requirement for the aggrieved person to issue a Concerns Notice to a publisher before the person can commence defamation proceedings. Once the notice has been issued, the publisher now also has an extended period within which to make amends (previously capped at 28 days) if further particulars for the notice have been requested.

Introduction of a single publication rule

The amendments introduce a single publication rule which applies to determining when the limitation period commences in the case of multiple publications. It amends the Limitation Act 1969 and provides that, where multiple publications are substantially the same, the limitation period for any defamation action begins on the date of the first publication. The standard limitation period is one year, however the court may extend this by up to three years if satisfied that it is just and reasonable to allow an action to proceed.

The amendments provide that the “date of first publication” in respect of a publication in electronic form is “the day on which the matter was first uploaded for access or sent electronically to a recipient.” This is in recognition of the fact that an online publication may be downloaded a long time after it was first uploaded by the publisher, and that subsequent downloads are not to be taken as a new publication of the material for the purposes of the limitation period.

Introduction of a defence for scientific or academic peer-reviewed matters

This amendment recognises that it is in the public interest for academics and scientists to be able to express their views freely, particularly if those views have been subject to peer review. As with a number of the other amendments, this one was also modelled on a defence that already exists in the UK Defamation Act.

Under the new provision (which will become section 30A of the amended Defamation Act), it is a defence to the publication of a defamatory matter if the defendant can prove that the matter was published in a scientific or academic journal, the matter relates to a scientific or academic issue, and there was an independent review by particular persons, before publication in the journal, of the matter’s scientific or academic merit.

Next steps

The Council of Attorneys-General has agreed to a second stage of review and subsequent reform which will focus, among other things, on the liability of digital platforms for defamatory content published online. Like the first stage of review, the second stage will also be led by NSW. The Council of Attorneys-General will next meet in late 2020, at which time agreement will be sought to release a discussion paper for public consultation in relation to the second stage of review.

Authors: Susan Goodman & Melissa de Jongh

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The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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