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Potter, Richard --- "Editorial: Defamation Reform: The Pendulum Swings Back" [2023] PrecedentAULA 37; (2023) 177 Precedent 2

Defamation reform: The pendulum swings back

By Richard Potter SC

The ever-moving pendulum that is the state of defamation law swings towards freedom of speech and then back to privacy of reputation without ever quite achieving that optimum balance between the two competing values.

A raft of changes was introduced in July 2021 to the uniform state and territory legislation (save for WA and NT, which remain with 2005 law, causing a rift in uniformity).^[1] The aim of these Stage 1 Defamation Reforms is to tackle the rising number of defamation cases, especially those concerning social media and online publication, which now account for half of all defamation suits. The pendulum needs to be nudged away from protection of reputation, and the heaviest nudge is the introduction, in a new s10A, of a threshold of ‘serious harm’ for any action to proceed. A serious harm threshold was introduced in 2013 in the UK, where it became a blunt instrument for cutting down the number of defamation actions.^[2]

Another roadblock to launching a case is the requirement, in new ss12A and 12B, that a Concerns Notice be sent to a prospective defendant before proceedings can commence. The contents of a Concerns Notice must include particulars of serious harm and details of defamatory meanings, which must remain broadly the same in any later statement of claim.

Other changes include:

• The introduction of a new public interest defence in s29A of the Act, again taken from a UK equivalent.

• A technical clarification of the contextual truth defence at s26, so that a plaintiff’s imputations can also be pleaded back as contextual imputations.

• A new defence of scientific or academic peer review at s30A.

• The addition at s9(6) of independent contractors to the mix when deciding whether a company can sue (that is, has fewer than ten employees).

• Clarifying the damages ceiling (presently $443,000, with an annual increase based on the consumer price index), so that an award of aggravated damages does not remove the ceiling for general damages, as it did before.

• Abolishing the multiple publication rule, where every copy sold or every download of digital material constituted a new publication for limitation purposes (now the limitation period of one year runs from the time of first publication or, in the case of digital material, the first uploading (unless a subsequent publication is materially different).

Proposed amendments have not stopped there, though. A Stage 2 Review on the liability of internet intermediaries has received approval in principle by the Standing Council of Attorneys-General. The proposed legislation is yet to be released (the previous draft contained alternative sections for public response). Broadly, it will provide a statutory immunity for intermediaries such as search engines and internet service providers and a defence for other intermediaries if they comply with a yet-to-be-finalised and presently rather vague complaints mechanism.

A further proposed amendment is a contentious proposal to introduce a defence of absolute privilege to all complaints of alleged unlawful conduct by the police and other statutory investigative agencies. This would be a leap from the existing qualified privilege defence with its protection that malicious reports are not privileged.

Finally, there is the Privacy Act Review of 2023, which includes a proposed statutory tort of serious invasion of privacy. Although not defamation law, the overlap between the two areas of law is obvious. This has been bubbling since the Australian Law Reform Commission (ALRC) recommended it back in 2014.^[3]

The ALRC’s recommended form for the proposed statutory tort is the one favoured in the latest review. This of course depends on what is defined to be ‘serious’ and whether that means highly offensive to a reasonable person or something less. It seems inevitable that this will become part of Australian law in the near future, perhaps, ironically, generating the additional litigation recently cut down by the defamation reforms.

Richard Potter SC specialises in all aspects of media law, including defamation and contempt. EMAIL potter@153phillip.com.au.

^[1] Defamation Act 2005 (NSW), (Qld), (SA), (Tas), (Vic), (WA); Defamation Act 2006 (NT); Civil Wrongs Act 2002 (ACT).

^[2] Defamation Act 2013 (UK), s1.

^[3] ALRC, Serious Invasions of Privacy (ALRC Report 123), 2014.