There has not been any reform of the Defamation Act since it was introduced in 2005. The Council of the Attorneys General of each of the States and Territories of Australia has however now agreed to the enactment of a number of important amendments to the legislation. The proposed amendments include the following namely:-
- The introduction of the test of serious harm as an element of a cause of action for defamation;
- The provision of a concerns notice as a pre-requisite before the commencement of defamation proceedings;
- Amendment to the defence of contextual truth;
- Incorporation of a defence of publication of matter concerning an issue of public interest;
- Introduction of a defence concerning scientific or academic peer-reviewed material;
- Provisions pertaining to the maximum amount of damages for non-economic loss;
The test of serious harm
Previously in actions for defamation, it was not necessary to prove loss. Once defamation was established, then loss was assumed.
Upon the introduction of the amendments to the legislation, as a threshold issue, a plaintiff will now have the onus of proving that the publication of the defamatory matter has caused or is likely to cause serious harm to his/her reputation. As a trade-off, the defence of triviality is to be repealed.
The determination of the serious harm issue is required to be determined either as a pre-trial issue or during the trial on the court’s own motion or on the application of a party.
The necessity of a concerns notice prior to the commencement of legal proceedings
The Act as it presently stands already makes provision for concerns notices, however currently such notices are not compulsory. However, by virtue of the intended amendments to the Act, it will now be mandatory for an aggrieved party to give a concerns notice to a publisher prior to the institution of defamation proceedings.
Pursuant to such a notice a publisher will have 28 days in which to consider his/her position and whether to make an offer of amends. The applicable 28 period can be extended in circumstances where a publisher makes a request for further particulars.
If a publisher chooses to make an offer to make amends then pursuant to the intended amendments to the Act it will be necessary for the offer to remain open for acceptance for a minimum of 28 days.
Amendments to the defence of contextual truth
The defence of contextual truth enables a defendant to raise a defence that in addition to the defamatory meanings relied upon by a plaintiff in order to found a claim, the defamatory material gives rise to other defamatory imputations (the contextual imputations) and therefore by virtue of the truth of the same no further harm is done to the plaintiff’s reputation.
However pursuant to the decision in the matter of Kermode v John Fairfax Publications it was determined that by virtue of the wording of the Act in order to rely upon such a defence a defendant had to be in a position to plead additional imputation/s in addition to that relied upon by the plaintiff. Prior to the introduction of the Act in 2005 the practice had become known as pleading back a plaintiff’s imputations.
The amendments as contemplated will overcome this difficulty and specifically allow defendants to rely on imputations complained of by a plaintiff.
The defence of publication of matter concerning an issue of public interest
The defence of qualified privilege under section 30 of the Act was intended to respond to circumstances where there was not necessarily a reciprocity of duty and interest between publisher and recipient, however, it has largely been unsuccessful. It has not been successfully applied in mass media matters.
With the proposed amendments to the legislation, it is now contemplated that it will be a defence to a claim of defamation if it can be proven that the defamatory matter pertained to an issue of public interest, and the defendant reasonably believed that the publication was in the public interest. Further, the amendment lists various factors that a court may take into account in determining the question of reasonableness.
Interestingly one of the factors that is specified is whether the source of information in the matter published is a person whose identity is required to be kept confidential.
Another factor is listed as the importance of maintaining “freedom of expression in the discussion of issues of public interest”.
Defences concerning scientific or academic peer-reviewed material
Under the amendments it is contemplated that it will now be a defence to defamatory matter if it can be proven that the matter was published in a scientific or academic journal and the matter relates to a scientific or academic issue and an independent review of the matter was carried out prior to publication by persons with appropriate expertise.
Such a defence is defeated if the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.
Provisions pertaining to the maximum amount of damages for non-economic loss
Under the Act damages for non-economic loss is capped. At the present time damages in defamation, matters are capped at $421,000 for non-economic loss. There is also provision in appropriate cases for awards of aggravated damages. The cap imposed in respect of damages for non-economic loss was intended to ensure parity with awards of damages in other legal matters as for instance in personal injuries cases.
However, there have been some inconsistencies in the approaches taken by various courts when assessing damages. For example, the damages awarded in cases such as Bauer v Wilson (No 2) and Rush v Nationwide News.
The amendments now sought to be made to the Act specify that the maximum amount for non-economic loss is only to be awarded in the most serious cases. Further, it is now contemplated that if aggravated damages are to be awarded then any such award is required to be separate and distinct from awards specified for damages for non-economic loss.
These are just some of the extensive amendments that are proposed to be made to the Defamation Act.
If you would like to learn more about the changes to the Act, or if you are seeking defamation advice, please contact Mark Jones.
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