Aims of the Defamation Reform:
The Defamation law reform legislation comes into effect on 1 July 2021. The purpose of this reform is to more proficiently balance public interest protections particularly in relation to individual reputations / freedom of expression.
The key changes are:
- Introduction of serious harm threshold
- Greater clarification around the cap on damages for non-economic loss, setting the upper limit on a scale and applying regardless of whether aggravated damages apply
- Single publication rule (extensions on the limitation period to run from the first publication of alleged defamatory material to provide simplicity for multiple publications of the same defamation matter)
- Requirement of concerns notices to be served with sufficient time for an offer to make amends to be made before proceedings can be commenced
2 new defences:
- This includes new public interest defence (modelled on s 4 of the Defamation Act 2013 (UK) to protect responsible journalism
- Defence for peer reviewed matters published in academic journals
- This affects NSW, Vic, SA and QLD (at this stage)
Protecting Transparent Reporting on Public Issues
The progression of media, online platforms and technological reliance, since the establishment of the Defamation Act 2005, is exponential. However, the legislation surrounding defamation is outdated and fails to accommodate the growing technological reliance society faces.
These amendments aim to more proficiently adhere to the liberties of Australian’s freedom of speech and comply with the growing voice of online presences.
Shannon Fentiman, Attorney-General and Minister of Justice, expresses the lacking clarity within the courts, community and online of what defamatory conduct constitutes. Fentiman elucidates the vital role reporting and media disclosure plays in our country, and identifies the need for transparent and factual statements as fundamental. These added protections will support Australian’s freedom of expression, and enable media outlets and social figures to communicate transparently on issues of public’s interest.
Existing matters will adhere to the current defamation legislation. However, new proceedings after the law has come into effect on 1 July 2021, will accommodate the provisions outlined in the new amendments.
Fentiman explains the reform as repercussive to a growing public interest, outlining the specifications included in the recent Bill as:
- Simplification of matters involving multiple defamatory comments within the same 12 month limitation reporting period
- Assessment of the harms severity, analysed through a party issuing a concerns notice prior to litigation
- Increased defences around public interest and empirical statements within academic journals
- Restricted compensation for non-economic loss
The prevalence of case law challenges under the Defamation Act 2005 has increased over the past decade. These amendments are proactive in considering the liberties of Australians and the technological reliant society that exists today.
The Defamation (Model Provisions) and Other Legislation Amendment Bill 2021, is in stage two of reviewing the correlation between social media and defamatory actions. Each state and territory Attorney-General were unanimous in acknowledging the need for a significant reform to the defamation legislation.
In July 2020, they congregated to administer a proposal for the Model Provisions Bill. In enacting the Bill they hope to more adequately adhere to the public interests of transparency and freedom of expression moving forward.
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