Disclaimer: Since the publishing of this article, the Defamation Amendment Act 2020 No 16 (NSW) has come into force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
As our methods of communication change and develop so do our defamation law needs. These changing needs have been recognised recently in a bill (the Defamation Amendment Bill 2020 (NSW)) 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 for cases to reach trial.
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 there was an exception in the form of the multiple publication rule. This rule provided that each publication of the article was subject to its own limitation period – so if a media organization reproduced an article, that new version would be subject to a fresh limitation period, as opposed to being constrained to the limitation period of the original article. The newly introduced single publication rule means that the limitation period commences when the initial publication occurs and subsequent republications of substantially the same content is not subject to its own limitation period.
Another amendment would mandate that the person about whom the defamatory comments are made must issue a concerns notice to the other party. This notice would enable the other party to provide an offer to resolve the issue before the commencement of court proceedings. The amendment provides clarity as to the form of this notice, its timing and content as well as guidance as to responses.
Public Interest Defence
A new defence has been put in place to ensure that Australian defamation laws do not inhibit freedom of expression. This new defence is the ‘public interest defence’. The new section, section 29A, states that a defendant will not be liable for defamation if the article concerns an issue of interest to the public, and they reasonably believed that the matter was in the public interest. It is then up to the court 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, who may otherwise be at risk of defamation proceedings.
Contextual Truth Defence
The contextual truth defence allows for defendants to argue that the context in which the defamatory imputations appeared contained other imputations that were substantially true. This was designed to operate in instances where there are multiple defamatory meanings – some are ‘substantially truthful’ while others are not. These were amended in section 26 of the new Bill, which has been reformed to clarify the defence.
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 damages that may be awarded for non-economic loss. 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.