Bird & Bird's media team in Australia report on new changes to defamation law, anticipated to make it easier for the media to report on matters of public interest

What you need to know

1. Australia’s States and Territories are taking steps to implement defamation law reforms. It is anticipated that the reforms will improve the ability of the media to report on matters of public interest, and lead to an overall reduction in defamation litigation in Australia.
2. New South Wales is the first state to introduce the new laws, passing the Defamation Amendment Bill 2020 (NSW) on 6 August 2020 which will result in NSW amending the Defamation Act 2005 (NSW) (the Act) and the Limitation Act 1969 (NSW) (the Limitation Act). The Bill was assented to on 11 August 2020, but importantly, the legislation has not yet commenced operation.
3. When they commence, the new laws will introduce wide ranging reforms including a serious harm threshold and a public interest defence.
4. Stage 2 of the defamation reform process, dealing with internet defamation issues and the liability of online platforms is ongoing, and a consultation paper is not expected until later in 2020.

Critical Reforms

New South Wales has taken the lead in implementing the long-awaited reforms to Australian defamation law, with the Defamation Amendment Bill 2020 (NSW) passing both houses of parliament on 6 August 2020 (copy available here). The legislation will not commence operation until a later date to be appointed by proclamation. It is currently expected that the legislation will not commence operation until all States and Territories have implemented their reform legislation. At present, no other jurisdictions have introduced defamation amendment bills.

Some of the main reforms, as reflected in the NSW Bill, include:

1. Introduction of a serious harm element: The NSW Bill introduces a serious harm element to the cause of action for defamation. This raises the threshold for plaintiff’s who will now be required to prove that they have suffered serious harm to their reputation in order to bring a successful action in defamation.
2. A revised concerns notice process: Currently under the Act, it is not mandatory for a prospective plaintiff to issue a concerns notice to a publisher prior to the commencement of proceedings. The amendments now make it mandatory to do so, thereby limiting a prospective plaintiff’s right to commence proceedings without attempting settlement first.
3. Clarification around offers to make amends: In addition to elaborating on the requirements of, or potential matters for inclusion in, an offer to make amends, the NSW Bill also introduces a statutory requirement that: (i) an offer to make amends be open for at least 28 days commending on the day after the offer is made; and (ii) in a jury trial, it is the judicial officer (and not the jury) who is responsible for determining whether or not a defendant has a defence that the plaintiff failed to accept a reasonable offer to make amends.
4. A revised contextual truth defence: The NSW Bill has revised and clarified the wording of the contextual truth defence such that a defendant can now plead back the imputations the plaintiff relies on to clarify their meaning and establish whether they are substantially true.
5. Introduction of a public interest defence: The NSW Bill introduces a defence of public interest, which will be successful if a defendant proves that: (i) the matter concerns an issue of public interest; and (ii) the defendant reasonably believed that the publication was in the public interest.
6. Introduction of a single publication rule: The NSW Bill amends section 14B of the Limitation Act such that the “date of publication” in relation to the publication of matter in electronic form is now the day on which the matter was first uploaded for access or sent electronically to a recipient (not the day that it was downloaded).

Stage 2

At the 27 July 2020 meeting of the Council of Attorneys-General (CAG), participants agreed to progress a second stage of reform proposals focusing on the responsibilities and liabilities of digital platforms for defamatory content published online. CAG announced that agreement would be sought at the next CAG meeting to release a Stage 2 discussion paper for public consultation.

Separately, on 26 June 2020 National Cabinet commenced a review of COAG councils and ministerial forums, including CAG. That review is due to provide recommendations to National Cabinet by September 2020. Accordingly it is currently expected that further CAG meetings may not be scheduled until the conclusion of that review, and CAG may not release the Stage 2 discussion paper until September at the earliest.

Keep an eye out for our further Australian defamation law reform updates, as we track the implementation of these critical changes.

Imagecredit: flickr/creative commons, Jon S