On 20 April 2021 the Queensland Government announced that it had introduced the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 to Parliament, and if passed, changes to the Defamation Act 2005 could commence as early as 1 July 2021.
Discussions between the State and Territory Attorneys-General in July 2020 suggests a national approach to update defamation laws in order to create clarity to the Courts, the media and the community, and to provide greater protection to individuals throughout Australia.
Attorney-General and Minister for Justice, Shannon Fentiman, noted that some of the key changes include:
Single Publication Rule
Currently, a plaintiff has one (1) calendar year (limitation period) to bring an action in defamation after the first publication, and the limitation period restarts with each download or day which the publication remains online. Under the new laws, a plaintiff will only have 1 year from the date which the publication is uploaded (accessible) or sent electronically.
Serious Harm Threshold
This is the most significant change. Plaintiffs must show that the defamatory publication has caused, or is likely to cause, serious harm to their reputation, and in the case of a corporation, establish that serious financial loss has bene or is likely to be caused to its business. In some cases, a judicial officer may determine whether a plaintiff has met this threshold prior to a trial. The aim of this threshold is to reduce the number of minor cases proceeding to trial and to deal with them in the early stages.
Mandatory Concerns Notice
Plaintiffs will be required to issue a Concerns Notice prior to initiating proceedings. Previously not mandatory, although highly recommended in any event.
Definition of “Employee”
Under the current legislation, there is some uncertainty as to who classifies as an employee in determining whether a corporation can bring an action for defamation. Corporations are unable to bring an action in defamation if it has more than 10 employees. The new definition of employee will include any individual (whether an employee or contractor) who is engaged in the day to day operations (other than a volunteer) and is subject to the control and/or direction of the corporation.
New Defences
Modelled after defamation laws in the UK, the ‘Public Interest’ defence will aim to protect journalists and media organisations where they are publishing (or reporting on) matters which are of public interest. A defendant must show that they the matter concerns a matter of public interest and that they reasonably held such a belief.
The defence of ‘Scientific or Academic Peer Review’ will apply in instances where a publication relates to a scientific or academic issue which has been the subject of independent review of scientific or academic merit. The material must be contained in a peer-reviewed publication such as an academic or scientific journal.
Cap on damages for non-economic loss
The new laws seek to clarify and confirm the maximum monetary amount which can be awarded for non-economic loss, even in cases where plaintiffs are awarded aggravated damages. It will also aim to reserve the maximum amount for non-economic loss to the most serious cases. However, it will not limit the Court’s power to award aggravated damages if warranted.
How does this affect you?
If you are the subject of a defamatory publication, you will need to:
- act faster upon becoming aware of the publication;
- demonstrate that you have suffered, or are likely to suffer, serious harm to your reputation;
- weigh up the cost of pursuing the matter (cost of issuing Concerns Notice and proceedings);
- consider whether your business meets the exclusion criteria under legislation; and more importantly
- obtain legal advice before pursuing the matter.
Want to know more about defamation laws?
If you are the subject of a defamatory publication, or have been issued with a Concerns Notice or defamation proceedings, please do not hesitate to contact our team at FC Lawyers.
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