Reform of defamation law

Owen Griffiths, Law and Bills Digest

Key issue
The Council of Attorneys-General has initiated a review of the model defamation provisions with the aim of nationally consistent reforms being ‘Parliament ready’ in 2020. While the model defamation provisions are enacted in state and territory legislation, there are likely to be federal implications, including changes which may require legislative amendment.

Defamation law is a complex legal area which endeavours to allow individuals to protect their reputations without placing unreasonable limits on the discussion of matters of public interest and importance.

In 2018, the Council of Attorneys-General convened a Defamation Working Party, led by NSW, to undertake a review of defamation law. This is the first major reform process since the then Standing Committee of Attorneys-General approved model defamation provisions in 2005. Each state and territory used these model provisions to enact uniform defamation legislation.

The review will examine whether the policy objectives of the model provisions remain valid and whether the provisions remain appropriate to achieve them. The review will have regard to:

the recommendations of a statutory review by the NSW Department of Justice
Australian and overseas case law and
developments in technology.

Notably, the Senate Select Committee on the Future of Public Interest Journalism recommended in 2018 that the Commonwealth work with the other jurisdictions to reform defamation laws to promote an ‘appropriate balance between public interest journalism and protection of individuals from reputational harm’.

The review process will consist of two rounds of public consultation timed to enable jurisdictions to enact changes ‘from the middle of 2020’. A discussion paper was released in February 2019. Public submissions, including from the legal sector, media, telecommunications and technology companies, support a range of reforms.

Possible reforms

Key issues for consideration by the review include: the capacity of corporations to take action; the processes for the resolution of disputes without litigation (including offers to make amends); and the possible introduction of a ‘single publication rule’ to address issues with material made available online.

The review will examine the operation of the various tests and defences in defamation law. In particular, reflecting reforms in the UK, the discussion paper asks whether a ‘serious harm test’ should be introduced. This test could raise the threshold for claims by requiring plaintiffs to prove the defamatory publication caused, or was likely to cause, serious harm to their reputation.

Remedies are also under consideration. Damages for non-economic loss are limited by statute (currently capped at $398,500). However, the Victorian Court of Appeal in Bauer Media Pty Ltd v Rebel Wilson [No 2]recently held that, where a court is satisfied it is appropriate to award aggravated damages (additional compensation when the defendant’s conduct has caused aggravated harm), this statutory cap on damages for non-economic loss is inapplicable. The operation of the statutory cap is likely to be clarified.

Reflecting technological developments

The discussion paper notes concerns raised by legal, media and technology stakeholders regarding the potential liability of online publishers and other digital services for defamatory matters communicated by others. In particular, the scope and utility of the existing defence of ‘innocent dissemination’ and the lack of a clear ‘safe harbour’ for online intermediaries of defamatory matter are being considered.

The Broadcasting Services Act 1992 (Cth) provides that state or territory law has no effect to the extent that it subjects an internet content host or internet service provider to liability for hosting or carrying particular content where they were not aware of the nature of the content. However, the scope of this protection has been questioned as it is unclear how it applies to search engines, social media sites or messaging services. The volume of content carried by these services also makes it challenging for them to remove material after being made aware of it.

The discussion paper acknowledges this issue is ‘one of the most complex to address and has implications beyond defamation law alone’. The overlap with other online content regulation issues is reflected in the ongoing Australian Competition and Consumer Commission inquiry into Digital Platforms and recent criminal laws regarding the sharing of abhorrent violent material. Potentially, the review’s findings could contribute to the amendment of the Broadcasting Services Act to clarify protections and responsibilities of online intermediaries in relation to content (such as responding to takedown notices).

Jury trials

The 2017 decision in Wing v Fairfax Media Publications Pty Limited found that sections of the Defamation Act 2005 (NSW) which deal with the role of juries and the judiciary in trials were inconsistent with the Federal Court of Australia Act 1976(Cth). Arguably, this situation creates an incentive for some parties to litigate defamation actions in the Federal Court to avoid the involvement of a jury in proceedings.

The discussion paper asks whether the legislation should be amended to provide for juries in Federal Court defamation trials. This issue intersects with broader questions under review concerning the roles of juries in defamation proceedings. The federal Attorney-General, Christian Porter, has indicated possible support for measures to prevent ‘forum shopping’ by litigants.

Step outside and say that

Parliamentary privilege protects parliamentarians when speaking or acting in relation to parliamentary proceedings. However, outside of this protection, they can still be involved in defamation disputes. The reform of defamation law could influence the overall tone of Australian politics by creating a more permissive environment for free speech and public interest reporting.

Reform of defamation law

Possible reforms

Reflecting technological developments

Jury trials

Step outside and say that

Further reading