Australian defamation law is being overhauled.
In Queensland, the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 and in New South Wales the Defamation Amendment Bill 2020 have been introduced to both Parliaments and are proposed to commence on 1 July 2021.
The Australian defamation law changes which are proposed are:
Concerns notices and offers to make amends
A plaintiff will have to serve a ‘concerns notice’ which will have to clearly set out the imputations to be relied upon in any proceedings and then wait for 28 days being he applicable period for the other party to make an offer, publish an apology, remove the publication, pay compensation or to make amends before they can commence proceedings in a court.
The concerns notice must:
- specify where the defamatory comment or article can be viewed and accessed such as the web address etc.
- what ‘serious harm’ the party alleges they have suffered or will suffer and include a copy of the defamatory material.
‘Serious harm’ threshold
This is a significant change, and a plaintiff will have to show the defamatory comment has caused, or is likely to cause, serious harm to their reputation.
This will be determined by the judge (not the jury) as a preliminary question, prior to trial.
Single publication rule
Under current law a plaintiff has one year to bring an action from the date of publication of the defamatory material.
Now, if the material continues to be downloaded, the one-year limitation will re-start with each download.
Public interest defence
This is modelled on defamation law in the United Kingdom and provides a defendant with a defence if it can show that the matter concerns a matter of public interest and the defendant reasonably believed that publication was in the public interest.
A plaintiff can no longer bring multiple proceedings for publication of the same or similar material by the same or associated defendants without a court’s permission.
New scientific or academic peer review defence
If a defendant can be established that the material is contained in a peer-reviewed publication in an academic or scientific journal it will be a defence.
A maximum of $250,000 can be awarded for non-economic loss and the maximum should be only awarded for the most serious cases even if a plaintiff also receives an award for aggravated damages.
What does this mean for defamation actions?
It is hoped by legislators that these amendments will eliminate the smaller and less serious claims for defamation and encourage early resolution.
There are more reforms proposed and it is envisaged they will focus on the responsibilities and liability of social media and digital platforms for content published online.
How can FC Lawyers help with Australian defamation law?
At FC Lawyers our experienced litigation team has acted for both plaintiffs and defendants in some high-profile defamation cases.
Contact our team today to discuss your defamation law matters.
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