On 1 July 2021, Stage 1 of the nationally agreed defamation reforms, Part 5 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) commenced in Victoria.
These reforms implemented amendments to the model defamation provisions developed by the Council of Attorneys-General Defamation Working Party (‘DWP’).
The DWP continues to work on Stage 2 reforms which are largely:
- addressing the question of intermediary liability for defamatory conduct of 3rd parties; and
- considering the impact of defamation laws on reports of alleged criminal conduct and misconduct.
Key changes – Stage 1
On 1 July 2021, the key changes as part of Stage 1 commenced operation.
These Stage 1 reforms will only apply to the publication of defamatory matters after 1 July 2021.
A new Serious Harm Threshold (s 10A)
A significant amendment to the Defamation Act 2005 is the introduction of a serious harm threshold which reframes the tort of defamation. Adopted from the United Kingdom, the plaintiff must prove that the defamatory publication has caused, or is likely to cause, serious harm to the reputation of the person. Further, corporate plaintiffs must establish ‘serious financial loss’ to their business where they are entitled to sue for defamation.
Such threshold is considered on a case-by-case basis by the judge of the case, with evaluation likely to occur early in proceedings. Whilst a judge does not have to wait for a party application, a judge will determine the issue as soon as practical if a party requests for the serious harm element to be determined before trial. This improves efficiency and preserves court resources by ensuring weak disputes are dismissed from the outset. This new serious harm threshold supersedes the old defence of triviality which has now been abolished.
A new Public Interest Defence (s 29A)
The new provisions introduce a defence of public interest, akin to defamation legislation in the UK, which ensures that freedom of expression and the discussion of matters of public interest is not unreasonably limited by defamation law.
Section 29A sets out factors which may be considered by the court when determining whether the defence has been established. Such list of factors is based upon the current Australian statutory qualified privilege defence.
A defendant will not be liable if:
a) the article concerned an issue of public interest; and
b) the defendant reasonably believed that publication of the matter was in the public interest.
Whilst the list of factors set out in 29A(3) may cause potential issues, some safeguards exist to ensure the defence can be established by defendants, including:
- no requirement that the court must consider the factors;
- not all factors need to be considered by the court;
- factors are not tied to specific aspects of the defence; and
- courts can consider ‘the interest of freedom of expression and discussion of matters of public interest.’
Defendants in the Australian media who have long awaited the adoption of this legislation may find that they continue to be presented with the existing challenges of employing a qualified privilege defence.
Statutory Qualified Privilege Changes (s30)
The defence of qualified privilege has been amended to clarify that defendants are not required to meet every listed factor in order to be found to have conducted themselves reasonably. As well as this, a provision has been added to give the jury the responsibility to determine whether the defence has been established.
Pleading back plaintiff’s imputations for defence of contextual truth (s26)
The defence of contextual truth has been amended to enable defendants to “plead back” any imputations the plaintiff has pleaded. In doing so, confusion can be reduced, particularly for juries. Plaintiffs will no longer be able to apply to amend contextual imputations pleaded by the defendant.
Cap on Damages for non-economic loss (s35)
Section 35 clarifies that the cap on damages for non-economic loss applies regardless of whether aggravated damages have been awarded. The ‘cap’ should be viewed as a scale, with the maximum amount only being awarded in most serious of cases. Under those reforms, the cap cannot be exceeded under any circumstances (general damages). As well as this, Section 35 elucidates that awards of aggravated damages are to be awarded separately to any awards of damages for non-economic loss.
These amendments will provide defendants with greater certainty of their financial risk and will reduce awards of general damages. There is no cap on the limited amount awarded for aggravated damages, the true costs of aggravation are clarified by the amendment.
Mandatory Concerns Notices and Offers to Make Amends (s12B)
Section 12B requires that concerns notices must be served before defamation proceedings are commenced. The application period for an offer to make amends must have elapsed, which can be made up to 14 days after any response to a particular notice or up to 28 days after the publisher received the concerns notice.
Elit Lawyers by McGirr & Snell has over 60 years specialised defamation experience acting on behalf of individual plaintiffs including high profile executives, parliamentarians, sporting and public figures and companies.
Do not hesitate to contact Danielle Snell and/or Robert McGirr in relation to any defamation concerns.