As our methods of communication change and develop so do our defamation law needs. These changing needs have been recognised recently in a bill (Defamation Amendment Bill 2020) that has passed in the New South Wales upper house. It amends the Defamation Act 2005 (NSW). These reforms are aimed at reducing the number of costly minor claims and the size of defamation payouts. Here are some of the major changes you need to know.
Serious Harm Element
Previously, there was no threshold that had to be met with respect to the seriousness of a claim in Australian defamation law. Claims were not filtered until they reached trial, which meant they had already incurred significant costs both financially and with respect to time. In the proposed amendment, section 10A, the onus would be placed on the plaintiff to prove that the publication ‘has caused, or is likely to cause, serious harm to the reputation of the person’. The aim of section 10A is to encourage the resolution of disputes earlier by creating a threshold that must be met.
Single Publication Rule
There has been an amendment to the Limitation Act 1969 (NSW) to include a single publication rule. Previously, a defamation action had to be commenced within one year of the publication as per the limitation period but the multiple publication rule provided that each publication of the article was subject to its own limitation period. The newly introduced single publication rule means that the limitation period commences when the initial publication occurs and subsequent republications of the same content or a republication of substantially the same content is not subject to its own limitation period.
An amendment has been put forward whereby it is mandated that the person about whom the defamatory comments are made is to issue a concerns notice to the other party to enable them to provide an offer in order to resolve the issue before the court proceedings can be commenced. The amendment provides clarity as to the form of this notice, its timing and content as well as guidance as to the response to the concerns notice.
Public Interest Defence
A new defence has been put in place to ensure that Australian defamation law does not inhibit freedom of expression by introducing a public interest defence. Courts have previously rejected a common law expression of the defence which is in place in the United Kingdom, Canada and New Zealand. The new section, section 29A, states that a defendant will not be held liable if the article concerns an issue of interest to the public and that they reasonably believed that the matter was in the public interest. It is then up to the judge to determine whether the defence has been established. This amendment is of use to media organisations who print information from confidential sources or whistle-blowers.
Contextual Truth Defence
The contextual truth defence allowed for defendants to plead contextual imputations and was designed to operate in instances where there are multiple defamatory meanings where some are ‘substantially true’ while others are not. These were dealt with in section 26 which has been reformed to clarify the defence and enable the defendant to ‘plead back’ any of the imputations that are substantially true.
There has been inconsistency with the interpretation and application of the previous section 35 of the Defamation Act 2005 (NSW). This section provides a maximum amount for the amount of damages that may be awarded for non-economic loss and this cap is more of a scale or range rather than a limit. However, the amendment provides that awards of aggravated damages must be made separately to an award for non-economic loss.
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our experienced defamation solicitors on 9963 9800 or via our contact form here.