14 July 2021

Sticks and stones may break my bones but words may not meet the new Serious Harm Threshold: New defamation laws have commenced

This article was written by Emma Costello, Priscilla Lal, Oceane Pearse and Evie Woods

Model changes to defamation laws came into effect in several States across the country on 1 July 2021.  The Queensland Government was the most recent State to enact the reforms, having passed the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld), which amends the existing Defamation Act 2005 (Qld), on 16 June 2021.  In so doing, Queensland joined New South Wales, Victoria and South Australia in their endorsement of the amendments identified through the Stage 1 review of the Model Defamation Provisions (MDPs).  The remaining States and Territories have committed to implementing the new defamation regime as soon as possible.

In 2018, the Council of Attorneys-General (CAG) agreed to a national review of defamation law, the first major reform since 2005.  The amendments were approved by the CAG on 27 July 2021, at the conclusion of the Stage 1 review of the MDPs.  Each State and Territory has agreed to utilise these amended MDPs to enact the uniform amendments to their respective defamation legislation.

The principal aims of the Stage 1 reforms are to strike a fairer balance between freedom of expression in the public interest and the right to protect a reputation.  This alert unpacks the key elements of the uniform amendments.

What key changes can we expect from the reforms?

Introduction of a single publication rule

Prior to the amendments, and at general law, a separate cause of action arose for each and every publication of a defamatory matter.  Effectively, this allowed plaintiffs to sidestep limitation periods, in online claims, as each third-party download of a webpage may be relied on as an individual and “new” publication.

This issue has been addressed by reducing the plaintiff to a single cause of action in relation to the publication of defamatory matter, thereby mandating that the one-year statutory limitation period commences from the date of first publication.[i]  For online material, the date of the publication will be the date it was first uploaded for access or sent electronically to a recipient, rather than when it was downloaded by a third party.  However, this amendment will not apply when a subsequent publication is materially different from the first publication.

In practice, this will likely mean a tighter timeframe for plaintiffs to file their action, and more scope for defendants to plead the statutory limitation defence.

In those States that have already implemented the amendments, this rule will only apply in relation to the publication of defamatory matter after 1 July 2021.

New element: Serious Harm Threshold

The changes introduce an additional element to a cause of action for defamation and require that the publication of defamatory matter must have caused, or is likely to cause, serious harm to the reputation of the person in question.  Under the amendments, a judicial officer may determine whether the serious harm threshold has been met either before or during a trial (either on application of a party, or on the judicial officer’s own motion).  If a party applies for a determination prior to trial, the judicial officer must determine the issue as soon as practicable, unless satisfied that there are special circumstances justifying postponement to a later stage of proceedings.   The judicial officer may consider a number of matters when deciding whether such ‘special circumstances’ exist, including the cost implications for parties, the resources available to the Court and, the extent to which establishing the serious harm element is linked to other issues for determination during trial. 

Requirement to issue a concerns notice

Potential plaintiffs must now also issue a concerns notice prior to commencing proceedings.  This amendment presents a significant change from the previous regime, under which it was not mandatory to engage in the concerns notice process prior to bringing a claim. 

Importantly, under the new provisions, plaintiffs must be careful to ensure that they are satisfied with the form of the imputations set out in the concerns notice, as they will be confined to these imputations, or imputations which are substantially the same, during proceedings.

The amendments also set out a number of legislative requirements regarding the form and contents of a concerns notice, including that a concerns notice must:

  • be in writing;
  • specify the location where the matter in question can be accessed (such as a webpage address);
  • inform the publisher of the alleged defamatory imputations;
  • inform the publisher of the purported serious harm caused or, likely to be caused;
  • for excluded corporations: inform the publisher of the purported serious financial loss, or likely serious financial loss; and
  • provide the publisher with a copy of the matter in question, if practicable.

The publisher will then have 28 days to make an offer to make amends (or 14 days following the receipt of further particulars). 

These amendments will encourage the early resolution of defamation claims.

New defences

The amendments also introduce two new defences.  Both of these defences bring Australia’s defamation laws more in line with the position under defamation legislation in the United Kingdom.[ii]

  • Public Interest Defence. The highly anticipated public interest defence, which has been the subject of considerable media interest, is intended to protect freedom of expression and the publication and discussion of matters of public interest and importance. 
  • To successfully rely on the defence, it must be proved that the defamatory matter concerns an issue of public interest and that a defendant reasonably believed that the publication of the matter was in the public interest.  The amendments also provide a non-exhaustive list of factors for the court to take into account when considering whether the defence is applicable.  Some of these factors include the seriousness of the defamatory imputation, the source of information in the matter published (including the integrity of those sources), and the importance of freedom of expression in the discussion of issues of public interest.

    • Scientific or Academic Peer Review Defence. To rely on this defence, it must be established that the defamatory matter:
      • was published in a scientific or academic journal;
      • relates to a scientific or academic issue; and
      • had been subjected to an independent review on its scientific or academic merit prior to publication.

    The amendments also clarify that once the scientific or academic peer review defence is established, it can only be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.  This new defence recognises, as a matter of public policy, that academics and scientists being able to express and discuss their views freely is in the best interests of the community.

    Clarification to the damages cap for non-economic loss

    The reforms clarify that the maximum amount (currently $432,000 in Queensland)[iii] that may be awarded for non-economic loss is to operate as the upper limit of a scale, with the that amount only to be awarded in the most serious of cases.  The amendments also introduce a requirement that aggravated damages are to be awarded separately.  Consequently, the scale for non-economic loss applies regardless of whether aggravated damages have been awarded.

    Key Takeaways

    • The newly introduced single publication rule will require parties seeking to bring a defamation action to act promptly upon discovering a publication, in order to fall within the one year limitation period. Additionally, aggrieved parties will need to comply with the requirement to issue a valid concerns notice prior to commencing proceedings, ensuring that each imputation is set out clearly within that concerns notice, such that it can later be relied on in court.
    • The introduction of the serious harm threshold may make it more difficult for a defamation action to be successful, therefore parties seeking to bring a defamation action will need to consider this element in detail. Excluded corporations in particular will need to prepare evidence of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication.
    • The requirement that a concerns notice must be served prior to commencing proceedings, and that defendants must be provided with sufficient time to issue an offer to make amends, will increase settlement opportunities in relation to potential claims. This will expedite some claims and reduce costs for those matters that do not proceed to court.
    • Defendants to a defamation action may be protected by the newly-created public interest defence or the scientific or academic peer review defence.

    What’s Next?

    Further changes to defamation laws nationally are expected as Stage 2 of the review of the MDPs begins, following public consultation having closed on 19 May 2021. 

    Stage 2 of the review will focus on the liability of digital platforms for online content as well as the impact of defamation law on reports of criminal conduct to police and statutory investigative bodies.  The Discussion Paper for Stage 2 of the review can be found here.

    [i] See, for example, the changes to section 10AB of the Limitation of Actions Act 1974 (Qld).

    [ii] See sections 4 and 6 of the Defamation Act 2013 (UK).

    [iii] Queensland Government Gazette, Defamation Act 2005 Declaration under Section 33(3), 387(34), p. 194, 18 June 2021.

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