Changes to Defamation Laws

Since the introduction of the national Uniform Defamation Laws in 2005, many changes in society have occurred, including the development in technology and our increasing reliance on social media platforms to communicate and share information. However, along with these changes also came the opportunity for people to spread defamatory material more easily than before. With the click of a button, someone can now share thei rthoughts about a person to potentially tens of thousands of people.

As such, changes to these laws were needed and, in 2020, States and Territories agreed to implement the Model Defamation Amendment Provisions 2020 with Stage 1 of these amendments coming into force on 1 July 2021. The most significant changes are as follows:

1. Serious Harm Test

Anyone wishing to bring a defamation proceeding will now need to establish that they have suffered serious harm. This threshold test has been introduced in attempts to limit frivolous claims appearing before the courts by requiring individuals and companies to consider whether serious harm has occurred as a result of defamatory comments prior to pursuing a defamation claim.

Unfortunately, there is no definition as to what constitutes ‘serious harm’ for individuals; however, for companies wishing to bring a defamation action, they will need to show that the material published has caused, or is likely to cause, serious financial loss. It is likely that other factors, such as the extent of publication and gravity of the allegations, will also weigh in on what constitutes serious harm.

2. Single Publication Rule

Prior to the reforms, an action for defamation could be brought each time that an electronic publication was viewed or downloaded. However, the date on which the material was first published will now be treated as the date that the clock starts ticking. This means that proceedings can only be brought within one year of the date that the material was first uploaded for access or sent electronically.  There is an exception to this limitation period where the material subsequently published is substantially different from the first material published.

In limited circumstances, a Court may extend this time period by up to three years if it believes it is ‘just and reasonable’ to do so.

3. Concerns Notice

The requirement to provide a concerns notice prior to commencing proceedings has now been enshrined in legislation along with the requirement that a person must wait 28 days after such notice has been provided before initiating legal proceedings.

Extra care is also now required when drafting a concerns notice. The new laws require that only those imputations listed in a concerns notice can be used as a basis for litigation.Therefore, if further imputations arise during proceedings that were not listed in the original concerns notice, then a plaintiff may be required to issue a further concerns notice.

4. New Defences

There are also two new defences which may be raised to a defamation claim.

The first is the Public Interest Defence, which was introduced to protect freedom of expression and the discussion of matters that are considered to be of public interest. A person claiming this defence will need to prove that the matter concerns an issue of public interest and that they reasonably believed that publishing the information was in the public interest. The court will then consider a number of factors, such as the seriousness of any defamatory imputation and the source of the information published, such as its integrity.    

The second is the Scientific or Academic Peer Review Defence. A person claiming this defence will need to prove that the matter was published in a scientific or academic journal, the matter related to a scientific or academic issue and that an independent review of the matter’s scientific or academic merit was undertaken prior to publication by an expert in that field.  

There are also a range of other changes, including clarification of existing defences and damages for non-economic loss.  

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27

In addition to the above changes, the High Court in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (“Voller”)  has ruled that companies who run Facebook pages are prima facie liable for all defamatory comments made by third parties.

In a 5:2 decision, the High Court rejected claims that media companies should not be responsible for defamatory comments made on their Facebook pages on the basis that such media companies are “publishers” for the purposes of the new defamation laws. Further, that the media outlets had “provided a forum for its publication and encouraged for its own commercial purposes, the publication of comments”.  

Their Honours affirmed the decision of the New South Wales Court of Appeal that defamation operates as a tort of strict liability, meaning that having an intention to publish is not required, merely that the defamatory material is published is sufficient to make someone liable as a publisher (subject to applicable defences). Their Honours construed the word ‘intention’ as“an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter… irrespective of the knowledge or intention on the part of the participant as to the defamatory content of the matter published.”  

The High Court’s decision has huge implications on those not only operating Facebook pages but potentially for those operating other social media platforms, such as Twitter, Instagram, personal blogs and other online forums that allow for third party commentary.

In light of the new changes and the Voller decision, it may be wise for those operating Facebook pages and other online forums to ensure they regularly monitor third party comments and in some cases even restrict the ability to comment altogether.  

How Sharrock Pitman Legal can assist?

As Accredited Commercial Law Specialists and experiened Litigation lawyers, we can advise individuals and corporations in relation to pursuing or defending a defamation claim.

Our Commercial Team can also advise on matters relating to corporations law, restructuring, trademarks, taxation or contracts feel free to contact us on 1300 205 506 or by email at sp@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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