Nicola Nygh and Harley Milano
The way we publish information and express ourselves online has changed dramatically since Australian defamation laws were last reformed in 2005. The rise of social media and the myriad ways in which we can express negative, and potentially defamatory, opinions online has led to a surge in defamation claims. However, many of these claims are considered trivial or designed to intimidate defendants with the threat of legal fees and damages payouts.
In response, on 27 July 2020 the Council of Australian Attorneys-General agreed to enact the Model Defamation Amendment Provisions 2020 (MDAP) in each state and territory. These reforms will implement the following key changes:
- new threshold of serious harm;
- mandatory concerns notice;
- single publication rule;
- a new limit on damages for non-economic loss; and
- some new defences
In announcing the Council’s decision the NSW Attorney-General, Mark Speakman SC, said that the state and territory Attorney-Generals will ‘get cracking’ on presenting the provisions to their respective parliaments.
- Mandatory concerns notice
Under the current provisions, an aggrieved person may issue a concerns notice to the publisher of the impugned material to allow the publisher the opportunity to make amends. Claimants, however, have often bypassed this step, proceeding straight to litigation and threatening defendants with the cost of legal fees and damages. Under the new amendments, it will be mandatory for potential claimants to issue a concerns notice as a prerequisite to bringing a defamation claim. After the issue of such a notice, the publisher of the impugned material will have a period of at least 28 days to respond with an offer to make amends. Publishers are incentivised to make a meaningful offer as this will provide a “complete defence” to any proceedings commenced.
- Serious Harm
If a potential claimant does not receive or does not accept the offer to make amends, they will need to prove that they suffered “serious harm” as a result of the publication. The publisher can ask the court to determine the serious harm element as a threshold issue before the trial commences. It remains to be seen how courts will interpret the “serious harm” test, although it is likely that they will have regard to the factors established in the UK case of Lachaux v Independent Print Ltd & Anor  UKSC 27:
- a) the scale of the publication;
- b) the fact that the statements complained of had come to the attention of at least one identifiable person in the relevant jurisdiction who knew the claimant;
- c) that the publications were likely to have come to the attention of others who either knew the claimant or would come to know the claimant in future; and
- d) the gravity of the statements themselves.
The “serious harm” test is the main feature of the MDAPs aimed at reducing the amount of petty claims that arise out of statements made on social media platforms.
- Single publication rule
The limitation period to bring a defamation claim is currently 12 months from the date of publication of a defamatory statement. This translates awkwardly to the digital world because under the current provisions, a defamatory act is considered to occur each time a digital article (or other media) is downloaded. This means that the limitation period can effectively extend indefinitely.
The new provisions will provide for a “single publication rule” where the 12 month limitation period will run from the date of first publication.
- New limit on damages for non-economic loss
The new provisions clarify that the maximum amount of damages for non-economic loss (currently $407,500, adjusted yearly for inflation) represents the upper end of a scale . Therefore, $407,500 now represents the theoretical worst case scenario, with less severe instances of defamation being assessed in relation to this absolute maximum. While this amendment is likely to result in reduced damages awards, aggravated damages, which formed a significant part of the very large recent awards to Geoffrey Rush and Rebel Wilson, are still available.
A further point to note is that currently, if aggravated damages are awarded, there is an open question as to whether the statutory cap on non-economic loss will still apply. In the case of Bauer Media Pty Ltd v Wilson (No 2)  VSCA 154, the Victorian Court of Appeal found that the equivalent Victorian statutory cap provision did not apply if aggravated damages had also been awarded. The MDAPs reverse this position and clarify that the statutory cap will apply to damages for non-economic loss regardless of whether aggravated damages have been awarded in addition to damages for non-economic loss.
- New defences
- Defence of scientific or academic peer review: If an otherwise defamatory statement is contained in a published scientific or academic journal, the publisher will generally benefit from a complete defence to any defamation claims; and
- Defence of communication of matters of public interest: This defence is primarily aimed at journalists. NSW Attorney-General Mark Speakman explained that the “qualified privilege” test currently in force has never been successfully used by a major news outlet in defence of a statement made by one of its journalists. The reforms provide for a defence where the matter concerns an issue of public interest and the defendant reasonably believed that the publication of the matter was in the public interest. The amendments are intended to provide a stronger defence in order to promote the publication and discussion of matters of public interest and importance. However, the extent to which they achieve this purpose remains to be seen.
The review of Australian defamation law is ongoing, with further amendments expected to be proposed in the near future. Despite much fanfare about the reforming defamation law to make it fit for purpose in the social media era, in substance, the current amendments seem to offer better protections for traditional mainstream media. One of the major issues likely to be addressed in further reforms is whether social medial companies like Facebook and Twitter should be liable for defamatory statements made on their platform by their users. Mark Speakman SC announced that a discussion paper on this subject will be released by the end of 2020, and draft reforms will be ready by mid-2022.
Disclaimer: Please note that this note is a summary only and therefore is general in nature. Specific advice should be obtained in relation to specific problems and issues.
Date: 30 July 2020