NSW has become the first state to legislate national defamation reforms that aim to modernise the law in Australia and bring it more into line with leading overseas jurisdictions such as the UK. The Defamation Amendment Bill 2020 passed both houses of the NSW Parliament on Thursday, 6 August.
The reforms, which were agreed upon by the Council of Attorneys-General (CAG) in July, are designed to promote a more appropriate balance between freedom of expression, especially when it comes to public interest journalism, and the protection of individuals from reputational harm.
Australia’s defamation laws have not received an update since the states and territories enacted uniform defamation legislation in 2005, when Twitter did not exist, Apple had not yet released the iPhone and Facebook was just one year old.
Since that time, the law in this space has failed to keep up with advancements in technology which has fundamentally changed the way people communicate.
The emergence of social media and digital news media has so dramatically changed the nature of modern publishing that critics argue that the current legal framework is no longer fit for purpose.
An example of this is the proliferation of people being sued for posting relatively trivial comments on their Facebook or other social media accounts and being forced to defend themselves in costly legal proceedings.
Indeed, according to the Law Society of NSW Journal, the number of these “digital cases” has increased so significantly that between 2013-2017 they made up more than 51 per cent of all defamation proceedings in NSW.
As a consequence, there will be a new “serious harm” test modelled on UK law which aims to reduce the volume of petty “backyard” claims before they proceed to a hearing.
Traditional media have also lined up to criticise Australia’s much maligned defamation laws claiming they are having a chilling affect on the media’s ability to report on stories that are of public importance and in the public interest.
The government has responded to this concern by introducing a new public interest defence to support reporting that is in the public interest. The defence is available if a publisher can prove that the defamatory matter concerns an issue of public interest, and they reasonably believed that publication of the matter was in the public interest.
The following is a summary of the most significant changes that will come into effect when the reforms become law:
- New serious harm test to reduce the number of minor claims from reaching court.
- New public interest defence to support and protect public interest journalism.
- The issuing of Concerns Notices will be mandatory before commencing proceedings
- A single publication rule which means that the limitation period will run from the date the content is first uploaded rather than restarting every time it is downloaded.
- Damages for non-economic loss will be capped.
Baker Love Lawyers has experience providing advice to clients regarding defamation disputes and can assist you with your enquiry.
