Changing Defamation Laws in a Digital Era

  • Blog
  • Changing Defamation Laws in a Digital Era
View All Articles

Scroll for more

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:

  1. act faster upon becoming aware of the publication;
  2. demonstrate that you have suffered, or are likely to suffer, serious harm to your reputation;
  3. weigh up the cost of pursuing the matter (cost of issuing Concerns Notice and proceedings);
  4. consider whether your business meets the exclusion criteria under legislation; and more importantly
  5. 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.

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, FC Lawyers cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. FC Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. FC Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.


Prefer to get in touch?

With offices in Brisbane, Sunshine Coast, North Queensland and Sydney, our team is well equipped to provide both advice and support across a broad range of legal areas.

Free call 1800 640 509
  • This field is for validation purposes and should be left unchanged.