On 1 July 2021, new defamation laws come into effect in New South Wales (NSW), Victoria and South Australia. These are the first Australian states to enact the nationally agreed upon Model Defamation Amendment Provisions 2020 (MDAPs). The remaining Australian states and territories have committed to implementing the new regime as soon as possible after 1 July 2021.
The amendments contained in the MDAPs are the result of an 18-month national reform process which aimed to modernise Australia’s defamation laws for the digital age. The MDAPs were approved by the former Council of Attorneys-General (CAG) on 27 July 2021 at the conclusion of the Stage 1 Review of the Model Defamation Provisions (MDPs).
Early Stages of Proceedings
1. Introduction of a Single Publication Rule
The introduction of a “single publication rule” means that time will run in relation to electronic publications from the time that they are first uploaded or electronically sent. Prior to the reforms, the limitation period began afresh each time that an electronic publication was viewed or downloaded.
2. Requirement for a Concerns Notice
The amendments require plaintiffs to serve a concerns notice on each defendant and to wait at least 14 days before suing. This will enhance the settlement opportunities in relation to potential claims and will open the door for potential defendants to make offers under the offer of amends provision.
An important consequence of this change is that plaintiffs must take care to ensure that they are satisfied with the form of the imputations in the concerns notice, as the imputations in the proceedings must be confined to imputations which are substantially the same. Where substantially new imputations are to be relied upon, plaintiffs will presumably seek to issue a further concerns notice. The provisions do not make it clear whether multiple concerns notices are permitted, and this may be an area in which disputes arise.
Additionally, the new provisions make it clear that a statement of claim does not constitute a concerns notice.
3. Clarification around Offers to Make Amends
The uniform defamation laws provide a defence in certain circumstances in which a reasonable offer of amends is not accepted. The amendments make a number of tidy ups to the offer of amends provisions, such as providing that the offer of amends must be open for acceptance for at least 28 days. Additionally, the amendments provide that the judge and not the jury is responsible for determining the availability of this defence.
The new laws also provide that an offer of amends defence is available in particular circumstances in which it was made as soon as reasonably practicable after the publisher was given a concerns notice. Previously, the offer needed to have been made within a reasonable period after becoming aware the matter complained of was defamatory (which is potentially much sooner).
4. Introduction of a Serious Harm Threshold
Perhaps most notably, the MDAPs introduce a serious harm element to the cause of action for defamation. This raises the threshold for plaintiffs who will now be required to prove that the publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation. This element is to be determined by a judicial officer as soon as practicable before the trial.
1. Introduction of a Public Interest Defence
The MDAPs introduce a defence of public interest modelled on section 4 of the United Kingdom’s Defamation Act 2013. The public interest defence is successful if a defendant proves that: i) The matter concerns an issue of public interest; and ii) The defendant reasonable believed that the publication was in the public interest.
2. Introduction of a Defence of Scientific or Academic Peer Review
The new laws introduce a defence for peer reviewed matters published in an academic or scientific journal. This defence is successful if a defendant proves that: i) The matter was published in a scientific or academic journal (including electronic journals); and ii) The matter relates to a scientific or academic issue; and iii) The matter’s scientific or academic merit was independently reviewed prior to publication by an editor of the journal or an expert in the field.
This defence will only be defeated if the plaintiff proves that the material was not published honestly for the purpose of the advancement of education.
3. Revised Contextual Truth Defence
The contextual truth defence has been revised to address a drafting issue in the former legislation. Previously, plaintiffs were able to defeat the contextual truth defence by “pleading back” imputations relied on as contextual truth imputations. The amendments address this by making it clear that imputations pleaded by a plaintiff can be relied upon as contextual imputations by a defendant.
Clarification of the Cap on Non-Economic Damages
The amendments clarify that damages for non-economic loss are calculated on a scale, and the maximum value should only be awarded in the most serious case. This clarification does not limit the court’s ability to award aggravated damages, although aggravated damages will be awarded separately to awards of damages for non-economic loss.
Next steps: Stage 2 Review of the Model Defamation Provisions
The second stage of the reform process commenced on 7 April 2021 with the publication of the long-awaited Review of MDPs – Stage 2 Discussion Paper (Discussion Paper). Part A of the Discussion Paper focuses on internet intermediary liability for the publication of third-party content, and Part B considers the impact of defamation law on reports of alleged criminal conduct and professional misconduct. Written submissions in response to the Discussion Paper closed on 19 May 2021 and are publicly available here.
We will continue to track and provide updates on these landmark developments in Australian defamation law reform.