Changes to Defamation Laws

The uniform defamation laws in Australia are currently undergoing a process of reform, with Stage 1 of the reform having largely been completed, where amendments to the Defamation Acts have now been passed in Queensland, New South Wales, Victoria, Australian Capital Territory, and South Australia, having commenced from 1 July 2021. 

Stage 2 of the reform, which deals with online defamation (including internet intermediary liability and social media, among other items), is still in review, and so this article has not contemplated the second stage of reform.  However, indicated throughout this article are some of the relevant new amendments as a result of the first stage of recent defamation law reform.

The purpose of this article is to provide some commentary as to:

1. what is defamation; and
2. the options available in the event you, your non-profit entity or small business have been defamed.

DEFAMATION

Defamation is the publication of information which damages a person, not-for-profit organisation, or small business’s reputation, without a lawful defence.

To successfully make a claim for defamation, the plaintiff must prove the following elements:

1. the material must have been published or communicated to a third party;
2. the material identifies or is about the plaintiff (i.e. person, not-for-profit organisation, or small business);
3. the material is defamatory (i.e. it damages the plaintiff’s reputation); and
4. (new element introduced per Stage 1 of reform) the publication of the material has or is likely to cause serious harm to the plaintiff’s reputation.

These elements are set out, and the available defences, in further detail below.

In summary, however, if the above elements are proven in court, and there is no applicable defence, then the court can make an award of damages (i.e. an order that the defendant pay a monetary sum to the plaintiff).  In making such an order, the court will seek to award damages that are proportionate to the harm caused to the plaintiff’s reputation.

WHEN CAN A CLAIM FOR DEFAMATION BE MADE, AND BY WHOM?

A person/entity seeking to make a claim of defamation must do so within a 12-month timeframe from the date of publication of the defamatory material.

Only individuals, not-for-profit corporations, and corporations with ten employees or less can sue for defamation. 

In this regard, it is noted that Stage 1 of the reform to the defamation laws has now introduced a definition of “employee”, being:

“any individual (whether or not a contractor) who is engaged in the day to day operations, other than as a volunteer, and is subject to the control and direction of the corporation.”

The effect of this new definition is that individual contractors could now be counted as part of those numbered as employees of a corporation.

SINGLE PUBLICATION RULE

Prior to Stage 1 of the reform of the uniform defamation laws, it was the case that when material was published online, every time a person downloaded the publication, it could be considered as being republished.  This created uncertainty as to when the 12-month period commenced when dealing with online publication or communication.

New amendments per Stage 1 of the reform of the defamation laws have introduced a single publication rule, so that:

1. the start date of the 12-month limitation period for each publication runs from the date of the first publication; and
2. for an electronic publication, the first publication occurs when it is uploaded for access or sent to the recipient (rather than when it is downloaded or received).

DEFENCES

Although it may be possible to prove the above elements, i.e. that defamatory material that identifies you/your not-for-profit organisation/small business has been published to a third party, there may be a number of defences that can be raised by the publisher of the defamatory material.

When raising a defence, the burden of proof is with the publisher of defamatory material, i.e. the defendant must prove that a defence applies.

There are a number of defences that may apply, and the most commonly used are set out below as follows:

Honest opinion

If the defendant can prove that the material they published was an expression of opinion (rather than a statement of fact), and that their opinion was a matter of public interest, and was based on proper material (i.e. material that is substantially true, or fell within/attracted certain other defences to defamation), then they may be able to rely on this defence.

Justification/Truth

The defence of justification/truth requires the defendant to prove that the defamatory statements they made were true or substantially true.

Triviality

Stage 1 of the reform of the uniform defamation laws has now removed this defence, which provided that if the defendant could prove that the plaintiff was unlikely to sustain any harm as a result of the published material, then this would act as a defence to defamation.

Innocent dissemination

This defence is intended to protect those who publish material in the capacity of a subordinate distributor, i.e. by publishing material that was created by someone else.  In order to rely on this defence, the defendant must prove that they did not know, and would not have known with the exercise of reasonable care, that the publication was defamatory.

Publication of public documents

Another defence that may be available is on the basis that a publisher is free to publish reports of matters contained in public documents, or a fair summary or extract from a public document.  For reference, public documents include but are not limited to judgments of a court or parliamentary proceedings, reports published by a parliamentary body, or records that are open to inspection by the public.

Absolute privilege

The defence of absolute privilege may be available in circumstances where matters are published in the course of parliamentary proceedings, or proceedings of an Australian court or tribunal.

Qualified privilege

The defence of qualified privilege may protect defamatory statements made in circumstances where the publisher reasonably believed the statements made was true or the publisher had a legal, moral or social duty to make the publication, and where you as the recipient had an interest in receiving it.  This defence is not available if it can be proved that the defamatory material was published maliciously.

This defence may apply, for example, to communications with police or other relevant authorities in the course of making a complaint, or to employment references made by employers.

Public interest

Stage 1 of the reform to the uniform defamation laws has introduced a new defence, which essentially provides that a publisher will not be liable if:

1. the publication concerned an issue of public interest; and
2. the defendant reasonably believed that publication of the matter was in the public interest.

The defence differs from the defence of qualified privilege as it does not require a publisher to prove the recipients had a specific interest in receiving the material.  As a result, this defence may protect journalists and others whose work is published to a wide/potentially unlimited class of recipients.

WHAT OPTIONS ARE AVAILABLE?

In the event that you consider you have been defamed, it will be important to save copies of the defamatory material, and to consider whether the materials satisfy the elements of defamation, and whether the publisher may be able to raise any relevant defences.  Circumstances can differ on a case-by-case basis, and so it is recommended that you obtain specific legal advice prior to taking any actions in response to alleged defamatory material being published, including but not limited to the issuing of concerns notices.

Non-litigious dispute resolution

Concerns notice

Stage 1 of the reform of the uniform defamation laws has now introduced a requirement that the defamed party must first issue a Concerns Notice prior to filing proceedings for defamation.

As such, if you are satisfied that the published material meets the elements of defamation (i.e. that defamatory material identifies you and has been published to a third party), and that the publisher would not be able to rely on any relevant defence, then you may wish to consider issuing a ‘concerns notice’ to the publisher of the material. 

A concerns notice must be made in writing, include your details and those of the publisher, and must inform the publisher of the alleged defamatory imputations that you believe have been made, as well as details of how, where and when the defamatory material was published.  You may also wish to consider including a request for what you require the publisher do in response to the concerns notice.

Amendments to the uniform defamation laws also set out that the concerns notice must:

1. be in writing;
2. specify the location of the defamatory publication - i.e., where it can be accessed, such as a web page address;
3. inform the publisher of:
4. the defamatory imputations that are alleged to arise from the offending publication; and
5. the serious harm or serious financial loss that the publication is alleged to have caused or is likely to cause;
6. (if practicable) provide the publisher with a copy of the matter in question; and
7. provide the publisher with 28 days in which to provide an offer to make amends.

Offer to make amends

In response to receiving a concerns notice, a publisher then has 28 days to make an ‘offer to make amends’.  The publisher may also request further particulars, and you must then provide such reasonable further particulars within 14 days (or any further agreed period), in order for the concerns notice to remain effective.

The publisher’s offer to make amends must include, among other things:

1. An offer to publish a reasonable correction of the defamatory material;
2. An offer setting out the reasonable steps the publisher will take to tell the other people who have been given the publication that the publication may be defamatory to you; and
3. An offer to pay the expenses reasonably incurred by you before the offer was made, and the expenses reasonably incurred in considering the offer.

The offer to make amends may also include other measures to compensate the harm sustained by you including publishing an apology, paying compensation for economic or non-economic loss, or details of any corrections or apologies made or action taken before the date of the offer.

Effect of acceptance of offer

Importantly, if you accept an offer to make amends, then you will be prohibited from asserting, continuing or enforcing any action for defamation against the publisher in relation to the matter in question, even if the offer was limited to particular defamatory imputations.

Effect of failure to accept reasonable offer

If you fails to accept a reasonable offer to make amends, then this may act as a defence to an action for defamation.

Litigation

Timeframe for issuing defamation proceedings, and other considerations

As mentioned above, if you wish to commence proceedings in relation to a defamatory matter, then you must do so within a 12 month timeframe from the date of publication of the defamatory material.

Prior to commencing proceedings for defamation as against a publisher of defamatory material, you should give consideration to, among other things, what it would mean from a reputational point of view, if it were to issue such proceedings given that such proceedings would be a matter of public record.

Injunction

Another form of relief is an injunction (i.e. a court order to restrain the publication of defamatory material).  Injunctions are a discretionary remedy and will depend on the circumstances of each case.  Courts are usually reluctant to exercise this discretion.  However, relevant factors include:

1. the strength of the plaintiff’s case;
2. the balance of convenience must favour the granting of an injunction (this involves an evaluation of likely prejudice to each side if the injunction was granted); and
3. other factors such as the availability of alternative remedies to the plaintiff, the adequacy of damages as a remedy and any delay on the part of the plaintiff in bringing the application.

Criminal defamation

In certain cases, defamation may also be a criminal offence under the relevant State’s Criminal Code, Crimes Act or similar legislation.  Criminal proceedings may be initiated against a publisher if the publisher knew the defamatory statement was false at the time of publication, or had no regard at the time of publication for whether the statement was true or false.

However, criminal defamation will not be established if the defendant can show that he or she had a lawful excuse for publishing the defamatory material (e.g. if one of the civil defences would have been available, if the matter was a civil defamation case, this will be accepted as a lawful excuse).

CONCLUSION

Defamation law is a complex area of law that is currently in a state of reform across Australia, and while the above may assist as some introductory comments, it is recommended that if you consider that you may have been defamed, that you seek specific legal advice.

Should you have any questions as to whether certain material is defamatory and/or what options are available in the event you have been defamed, please do not hesitate to contact us.

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.