Assisted by Jason Vo
On 6 August 2020, the NSW Parliament became the first jurisdiction in Australia to legislate the Model Defamation Amendment Provisions 2020 approved by the Council of Attorneys-General 1 (CAG) with the passing of the Defamation Amendment Act 2020 (NSW).
What do the defamation law reforms hope to achieve?
Developed from the 2018 statutory review of the Defamation Act 2005 2 (NSW) and in the wake of a string of recent high-profile cases, the defamation law reforms aim to:
- modernise the Defamation Act 2005 to better reflect the developments in digital and social media communications which have transpired since the Act was introduced;
- keep trivial claims out of court;
- clarify the operation of the cap on non-economic damages; and,
- support public interest journalism.
Key defamation law reforms
The key reforms include:
- introducing a serious harm threshold for defamation claims, to keep trivial claims out of court;
- introducing a requirement that concerns notices must be served with sufficient time for an offer to make amends before proceedings can be commenced, to encourage resolution before litigation;
- clarifying the operation of the cap on non-economic damages;
- introducing a new public interest defence modelled on section 4 of the UK Defamation Act 2013, to protect responsible journalism;
- introducing a new defence for peer reviewed matters published in academic or scientific journals; and,
- amending the Limitation Act 1969 3 (NSW) to introduce a single publication rule which will enable the limitation period to run from the first publication of alleged defamatory material, rather than the last click on a story.
What's next on the national defamation law reform agenda?
The Council of Attorneys-General have agreed to proceed with a Stage 2 process of defamation law reform to be led by NSW again which will focus on clarifying the responsibilities and liability of digital platforms for defamatory content published on their sites.
At the next Council of Attorneys-General meeting in late 2020, agreement will be sought to release a Stage 2 discussion paper for public consultation.
- Aggrieved parties should familiarise themselves with the new legislated requirement to serve a concerns notice on the proposed defendant, and its procedural requirements, and the changes to the limitation period rules if they wish to pursue litigation.
- Digital and social media communications companies should familiarise themselves with these latest changes to the Defamation Act and keep abreast of Stage 2 of the national defamation law reforms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.