New South Wales takes the lead on defamation law reform

In 2018 the Council of Attorneys-General (the CAG) initiated a review of the model defamation provisions with the objective of nationally consistent reforms being enacted by each state and territory by 2020.

With New South Wales leading the charge to change defamation laws across the country, it was unsurprising that this State was first to introduce and pass legislation to put into operation the Model Defamation Amendment Provisions, agreed by the CAG on 27 July 2020.

The Defamation Amendment Bill 2020 passed through New South Wales Parliament on 6 August and received assent on 11 August 2020, enacting amendments to the Defamation Act 2005 (NSW) (Defamation Act) and the Limitation Act 1969 (NSW) (Limitation Act).  Changes to both acts are due to commence imminently, although until the other states enact corresponding legislation and there is uniformity across the country (particularly in the context of national publications), the choice of law provisions in s 11 of the Defamation Act will apply. It is expected that other jurisdictions will follow New South Wales in implementing the model amendments, as all jurisdictions are keen to avoid the “bad old days” when there were significant differences between defamation law across the states and territories.

The changes agreed to by the CAG on 27 July 2020 and reflected in the NSW legislation are intended to:

• reduce litigation over insignificant matters
   
• address what was considered to be an imbalance between the public interest in freedom of speech and the protection of individual reputations, and
   
• better accommodate contemporary online publication platforms.

These developments reflect similar recent reforms implemented in the United Kingdom, which have resulted in a significant reduction in the volume of litigation in the area of defamation.

The key practical changes to the law are as follows.

Limitation period

Until now the limitation period for publication would “reset” each time a matter was published.  Accordingly, each time a matter was downloaded it was published giving rise to an open-ended period of liability, which effectively contradicted the 12-month limitation in the Limitation Act.

The “single publication” amendments agreed to by the CAG provide that publication occurs when the matter is first sent to a recipient or made available to the public on the internet.  With the amendments, the limitation period will start to run on the first publication of a matter. Time will only reset on a second or further publication if it is materially different to the first publication. The court is given a discretion to extend the period up to three years after the first publication and is directed by the legislation to consider the reasons and extent of the plaintiff’s delay in the exercise of that discretion.

Concerns notice

Although it is common practice to do so, under the existing law there is no requirement for a plaintiff to issue a concerns notice prior to commencing proceedings.  The New South Wales amendments will make it mandatory for a plaintiff to issue a concerns notice prior to commencing proceedings, thereby giving a defendant the opportunity to make amends before defamation litigation is commenced.  The legislation includes provisions dealing with the content and timing of the notice and the corresponding offer to make amends.

Defence of triviality and contextual truth

The defence of triviality, which rarely succeeded, will no longer exist under the amended law.  Instead the onus will now be on the plaintiff to satisfy the court, at a pretrial stage of the litigation, that it has suffered a “serious harm”.  This is a significant change to the law, requiring a plaintiff to prove prior to a trial that the defamatory matter has caused, or is likely to cause, serious harm to their reputation.

The defence of contextual truth has been clarified and bolstered to provide a better balance between the effect of true and untrue statements within a single publication.  It is anticipated that the amendments will give the defence a broader application.

Public interest defence

The legislation introduces the new public interest defence, providing a defence to the publication of defamatory matters if the defendant can prove the matter was in the public interest, and the defendant had a reasonable belief that the publication of the matter was in the public interest. The legislation provides a list of factors the court is to consider when determining whether the defence should apply. This additional defence intends to provide a broader and more effective platform than the existing qualified privilege defence—protecting media organisations and journalists where the publication relates to a matter of public interest. 

Damages

The amendments confirm the cap on non-economic damages, currently $421,000, is separate to aggravated damages and represents a most serious case.  Economic loss and aggravated damages remain as separate heads of damages sitting outside the cap.