Defamation in the modern world – Changes to defamation law in Queensland and New South Wales

The purpose of defamation law is to balance the protection of a person’s reputation with the right to freedom of expression by others.[1]

At common law, defamation is the publication of matter which tends to lower a person’s reputation in the estimation of his or her fellows by making them think less of that person, usually bringing that person into hatred, contempt or ridicule.[2]

In 2005, national defamation legislation was enacted in all Australian jurisdictions. The defamation acts repealed all existing legislation related to defamation, with the effect that the common law definition of defamation applies as modified by the new legislation.

Given the changes in technology and the online platforms available to media and individuals, it was seen as necessary for the defamation framework to evolve and modernise with the exponential growth of social media and online publication platforms.

As of 1 July 2021, Queensland, New South Wales, Victoria and South Australia have seen reforms come into effect in order to modernise Australia’s defamation laws as the digital age evolves.

The former Council of Attorneys-General (CAG) approved the Model Defamation Provisions (MDPs) on 27 July 2020 and implemented the key reforms to the defamation laws.

Key Reforms

The key reforms implemented include:

1. Introduction of a Single Publication Rule,
2. Requirement for a Concerns Notice;
3. Serious harm threshold;
4. New defences for public interest
5. A cap on damages for non-economic loss.

1. Single Publication Rule

The limitation period for bringing a defamation claim is one year from the date of the publication of the defamatory material.

What this meant in practice was that every time a person downloaded an article from an online publication, the one-year limitation period would effectively recommence and the claimant could rely on the further download to avoid the initial limitation for the initial publication of the defamatory publication.

This would mean that a claimant could commence defamation proceedings years after the publication was initially uploaded.

The “single publication rule” reforms the limitation period to modernise the issue which was created with the advancement of technology and prevalence of online media and social media platforms.

The new rules address the issue by attaching the commencement of the one-year limitation period to the date the material is first published.

If the material or material that is substantially the same is republished by the publisher or an associate, the commencement of the limitation period will not restart and will remain at the date of the original publication.

2. Requirement for a Concerns Notice

Plaintiffs are now required to send a Concerns Notice to the alleged publisher of the defamatory material prior to commencing proceedings.

There are specific requirements for the Concerns Notice to comply with to ensure it is a valid Concerns Notice.

The Plaintiff is required to wait at least 14 days before commencing proceedings after the service of a valid Concerns Notice.

If no successful defence is raised by the defendant, the plaintiff is then entitled to compensatory damages for the injury to their reputation and economic loss.[3]

3. Serious Harm Threshold

Prior to the reforms, the elements to prove defamation were:

1. the publication must be published to a third party;
2. the publication must identify the person said to be defamed;
3. the imputations arising from the publication must be defamatory in that the imputations lower the person’s reputation in the estimation of other.

After the reforms, in addition to the 3 above elements, a claimant must now prove that the publication of defamatory matter has caused, or is likely to cause, “serious harm” to the reputation of that person.

At this point in time, what constitutes “serious harm” is unknown and is not yet defined.

4. New Defences for Public Interest and Scientific and Peer Review

 The reform has introduced two new defences that the publisher of defamatory material can rely upon:

1. the defence of “public interest”; and
2. the defence of “scientific or academic review”.

Public Interest

In order to rely on the public interest defence, the defendant must show:

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

This defence is particularly important for journalists when reporting on matters that are of public concern.

Scientific and Peer Review

To rely on the scientific and peer review defence, the defendant will need prove that the defamatory matter:

1. was published in a scientific or academic journal;
2. related to a scientific or academic issue; or
3. had been individually reviewed for a academic or scientific publication.

It is then on the claimant to prove that the defamatory matter was not published honestly for the information of the public advancement of education.

5. Cap on damages for non-economic loss

The reform has set a cap on the damages for non-economic loss in defamation proceedings.

The capped amount is only to be awarded in the most serios case, however, this does not prevent a judge from awarding aggravated damages.

The cap for non-economic loss is currently $421,000.

This cap does not however apply to special damages for things such as loss of work opportunities.

6. Conclusion

Defamation is becoming a more prevalent issue in society and we are seeing an increasing number of complaints with respect to defamatory publications.

If you are concerned that you have been defamed or have been the subject of a defamation complaint, JHK Legal has extensive knowledge in defamation matters and can assist in providing expert advice to you.

If you require assistance, please contact the JHK Legal team.

Written by Drew Nelson, Senior Associate

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[1]Jones v Skelton [1963] 3 AII ER 952; [1963] 1 WLR 1362.

[2]Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340.

[3] Amanda Stickley, Australian Torts Law (3rd ed, LexisNexis Butterworths, Australia, 2013).