In the Public Interest? Changes to the Uniform Defamation Law

What you need to know

• The 2020 amendments to the Defamation Act make some significant changes to the legislation. 
• Prospective plaintiffs and publishers alike should familiarise themselves with the changes, which include new rules governing the circumstances in which defamation claims can be brought and key changes to the defences available for publishers.
• Operators of websites and other digital publishers should monitor the progress of the second stage of amendments regarding the application of the Defamation Act to digital platforms.
  
   

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Introduction

The 2020 amendments to the Defamation Act are the first significant amendments to the legislation since its introduction in 2005. Given the vast changes in technology over this 15 year period, most stakeholders saw reform as long overdue.

The amendments are wide ranging, from minor procedural changes such as allowing service by email, to major changes to the cause of action to include a new the serious harm threshold and the introduction of entirely new defences such as the public interest defence and the scientific or academic peer review defence. Notably, a number of the amendments have been modelled on the more recent UK Defamation Act 2013.  

The first round of proposed Model Defamation Amendment Provisions (MDAPs) were published in November 2019, following submissions from various stakeholders in response to the initial working paper. After consideration of further feedback from stakeholders, the final proposed amendments, which include some further significant changes to the MDAPs, were approved by the Council of Attorneys-General.  On 11 August 2020 the proposed bill had been passed and received assent in New South Wales. 

This article sets out a summary of the significant changes brought in by the amendments to the Defamation Act, and our views on the practical implications of the amendments for publishers and complainants.

For an overview of the changes which have now been passed in New South Wales, and which will shortly be introduced in the other jurisdictions, a summary table is available to download here.

Serious Harm Threshold

One of the most significant amendments is the introduction of a serious harm threshold (s 10A). The new test reframes the tort of defamation to make it an element of the cause of action that the publication has caused, or is likely to cause, serious harm to the reputation of the person.

In the case of excluded corporations, the test is whether the publication has caused, or is likely to cause, serious financial loss.

The decision regarding whether the threshold has been reached is a question for the judge, not the jury. The judge is also able to consider this question on their own motion: they need not wait for a party to make an application, although it seems more likely an application will be required.

Given a threshold test naturally lends itself to being heard early in proceedings, many stakeholders questioned at the time of the draft MDAPs how this new threshold would fit with the Federal Court's Defamation Practice Note, under which the Court seeks to limit the number of issues heard at an interlocutory stage, preferring to deal with such issues at trial. The final proposed amendments clarify that if a party applies for the serious harm element to be determined before the trial, the judge should determine the issue as soon as is practicable, rather than waiting until the trial. 

The final drafting of the serious harm threshold provision invites it to be determined as a preliminary question, especially given it is now an element of the tort. A rise in the number of hearings involving preliminary questions can therefore be expected.

The inclusion of this threshold is a response to the increase in "backyard fence" litigation: small disputes between individuals amplified into resource intensive court proceedings, which have proliferated in the age of social media. It seems likely that the introduction of this threshold will assist in reducing the amount of such litigation that proceeds to trial, and may also deter the commencement of some matters.

If a defendant applies early in proceedings to have the serious harm element determined and the judicial officer rules in the plaintiff's favour, a question that arises out of the proposed drafting is whether the defendant is able to raise the issue again later in proceedings if more information about the consequences of the publication becomes available. For example, evidence about the harm suffered as a consequence of the publication (or lack thereof) may be adduced from discovery, subpoenas and cross-examination of key witnesses during the trial. This question is particularly relevant in light of the decision to abolish the defence of triviality, which currently provides defendants with a defence at trial if they can establish that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

There is likely to be a period of transition as courts in Australia interpret the new threshold of serious harm (for example, whether it is an issue that can be raised more than once). With the introduction of the new threshold, it will be necessary for publishers to establish a strategy going forward for the preparation of evidence on seriousness, so that such evidence can be collated and deployed early in a proceeding in order to dispose of claims that don’t meet the threshold quickly and cost-effectively.  Similarly, prospective  plaintiffs will need to be mindful of the evidence required to establish sufficient harm prior to commencing proceedings.

Single Publication Rule

The amendments introduce into Australian law a single publication rule. This rule means that the limitation period (of one year) will run from the date the material is first made available to the public. Under the existing legislation, in the case of online publications, the limitation period restarts whenever a person downloads and comprehends the material from the internet, so in practice there is a potentially endless limitation period for such publications. 

The inclusion of this rule will therefore be beneficial to media organisations, who have noted the prospect of fresh litigation on each download has mitigated against keeping online archives. 

There is still the possibility under the proposed amendments that the limitation period will be extended (up to three years) if the court is satisfied doing so would be just and reasonable, having considered all the circumstances of the case.

The single publication rule will also not apply if the manner of subsequent publication is substantially different from the manner of the first publication.  What is meant by "manner" in this context remains to be seen, and will likely only be clarified through judicial interpretation.

In addition, there is a live question as to whether the language used in clause 1A ("first publisher") encompasses secondary publishers, as well as primary publishers. It is common for people to access older articles through secondary publishers like search engines, the operators of which have little to no control over the content appearing in search results, but it does not appear from the language of the section that secondary publishers will be protected by this rule.

The amendments in the second round of reform may clarify the position.

Date of Publication for Limitation Period

The amendments also clarify how the publication date for electronic publications should be determined for the purposes of the limitation period.

The amendments insert a definition for the "date of publication" to Schedule 4 Clause 1 (which states the limitation period runs for one year from the date of publication). The new definition states that date of publication for electronic material means the day on which the matter was "first uploaded for access or sent electronically". The limitation period therefore runs from the date the matter is first uploaded to a digital platform, rather than the date of download by a recipient, further preventing a "reset" of the limitation period. 

The application of this amendment is not limited to first publishers, so is likely to be much more significant for limiting the liability of digital platforms and other secondary publishers than the new single publication rule.

However, it does not appear the new definition will protect publishers if there is some minor amendment to the matter and it is re-uploaded.

Public Interest Defence

The amendments have introduced a new public interest defence (s 29A). The new defence is essentially a hybrid of elements of both the UK Defamation Act 2013 public interest defence, and the existing Australian statutory qualified privilege defence.

The new defence applies if the defendant can show:

• the matter concerns an issue of public interest; and
• the defendant reasonably believed that the publication of the matter was in the public interest.

Emulating the UK public interest test, the new defence also specifies that all the circumstances of the case should be taken into consideration.

While being broadly modelled on the UK defence, the proposed public interest defence does not include several of the protections for publishers included in its UK equivalent, such as the requirement that the court take into account editorial judgment when determining the reasonableness of the defendants' belief that the publication was in the public interest.  Instead, the proposed public interest defence contains a list of factors which may be taken into consideration by the court when determining whether the defence has been established, an approach which is modelled on the requirements of the current qualified privilege defence. 

It is unclear why the decision was made to diverge from the UK defence in this respect, and many of the factors listed for consideration in the proposed new defence appear to be directed more towards a test of general reasonableness (as is appropriate for the defence of qualified privilege), rather than whether or not the publication was in the public interest. The difference in approach also leaves greater uncertainty about how the defence will be interpreted, as UK cases cannot be looked at as a ready model of how the defence will operate.

While the introduction of the public interest defence was one of the most anticipated of the reforms, the decision to move the drafting away from the UK defence and more towards the existing test under the qualified privilege defence suggests that many of the difficulties defendants have faced historically in relying on the qualified privilege defence will be carried over into this new defence.  The historically narrow interpretation of the phrase "public interest" is also likely to present a challenge for defendants seeking to rely on the defence. 

Changes to Qualified Privilege Defence

The amendments to the qualified privilege defence attempt to clarify that defendants need not meet every one of the listed factors in order to be found to have conducted themselves reasonably (s 30). However, the existing drafting did not require all the factors to be included: it was the courts' interpretation of the defence and the application of these factors that has led to the bar being set so high for publishers seeking to rely on this defence. It seems unlikely that the amendments will substantially expand the application of the defence for media publishers.

The amendments do remove a number of the factors from the existing list of considerations (including the factors moved to the public interest defence), which may assist in making the defence more achievable. The amendments also clarify that the question of whether the qualified privilege and public interest defences have been established is a matter for the jury.

Contextual Truth

The defence of contextual defence (s 26) has been amended so it can operate as originally intended. Defendants will now be able to "plead back" imputations which the plaintiff has pleaded as part of the defendant's claim that the imputations that are carried by the matter do not further harm the reputation of the plaintiff. 

Concerns Notices and Offers to Make Amends

Concerns notices are now required before defamation proceedings can be commenced (new s 12B). Proceedings also cannot be commenced until the applicable period for an offer to make amends has elapsed.

There are also additional requirements for concerns notices (s 12A), including specifying the location where the matter complained of can be accessed (e.g. a webpage) and what serious harm the prospective plaintiff alleges they have suffered or likely will suffer. The prospective plaintiff must also provide a copy of the matter complained of (to the extent doing so is practicable). This will provide greater certainty for prospective defendants.  The amendments also add that an offer to amend can be an offer to remove matter from a website or other electronically accessible location.

An offer to make amends can now been made up to 14 days after any response to a further particulars notice, or, as previously, up to 28 days after the publisher received the concerns notice. An offer to make amends must remain open for acceptance for at least 28 days.

Damages

Following the decision in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, courts have taken the view that, if the court decides that an award of aggravated damages is appropriate, the cap on damages for non-economic loss no longer applies, and the court may make an award in any amount it sees fit. This has led to uncertainty for litigants and increasingly large sums of damages being awarded.

The amendments to section 35 clarify that the cap on damages for non-economic loss applies regardless of whether an award of aggravated damages has been made, and that the cap should be viewed as being the top end of a scale of damages for non-economic loss to be awarded only in a most serious case.

Amendments have also been made to introduce a requirement that awards of aggravated damages be made separately to awards of damages for non-economic loss.  In our view, this proposed amendment will have an effect that appears contrary to the intention of the Working Party (as set out in the Background Paper which accompanied the MDAPs), as it means that there is no limit placed on awards for aggravated damages.  As such, damages for non-economic loss will continue to be "at large" (that is, unlimited) in circumstances where the Court finds matters of aggravation. 

Other Key Amendments

Multiple Proceedings: leave will be required before further proceedings can be brought in respect of the publication of same or like matter by the same or associated defendants, including employees, contractors or associated entities of the previous defendant (s 23).

Honest Opinion: "proper material" is now defined as material that is substantially true, was published on an occasion of privilege, or was published an on occasion that would have attracted a defence under the public documents, fair report or honest opinion defences (s 31(4)).

Scientific or Academic Peer Review Defence: a new defence for publications in a scientific or academic journal that have been peer reviewed, and fair summaries and extracts from such publications (new s 30A).

Capacity to Sue: clarification around what corporations are entitled to sue for defamation (s 9), and a new rule that costs may be awarded if a plaintiff or defendant dies while proceedings are ongoing (s 10(2)).  

What's Next?

The amendments make a number of significant, and in many cases overdue, changes to the defamation law in Australia. For several of the new and amended provisions it remains to be seen whether they will achieve their stated purpose, and this will depend largely on how the courts interpret the new laws. 

It is worth noting that the amendments only impact publications which occur after the amendments commence: those publications made beforehand will still be subject to the "old" law. The amendment bill was introduced to the NSW Parliament on 29 July 2020, passed  both houses, and received assent on 11 August 2020, with the other states and territories to follow.

Ultimately, some of the biggest changes are potentially yet to come. Despite the Honourable Mr Speakman noting in his second reading speech that in 2017 more than 50% of defamation matters involved digital publications, many of the issues around how defamation law should apply to digital platforms remain unresolved. The Council of Attorneys-General decided not to include a consideration of how defamation law should apply to digital platforms in this "first stage" of reform. Instead, another working paper is due to be released in December 2020 where this issue will be considered in detail, but there is no clear timeline for reform.

A number of recent cases highlight that the existing defamation law is not fit for purpose for digital publications, and there remains a large amount of uncertainty for digital platforms as to what their liability is. 

Whilst the proposed amendments aim to provide additional certainty for defamation litigants, a large degree of uncertainty remains in relation to publications in the digital sphere, and publishers should keep a close eye on the further amendments.

Authors: Robert Todd, Partner; Nick Perkins, Senior Associate; Imogen Loxton, Lawyer; and Ted Talas, Lawyer.