11/08/2020

In passing the Defamation Amendment Bill 2020 (NSW) (‘Amendment Bill’) on 6 August 2020, NSW  Parliament has become the first jurisdiction in Australia to legislate new Australian Model Defamation Provisions, which were amended on the 27 July 2020 by the Council of Attorneys-General.

The Amendment Bill introduces significant changes to defamation law in NSW, though no date has been set for the amended Defamation Act NSW (2005) (Amended Act) to commence. The changes include measures aimed at enabling responsible journalism, modernising defamation laws in line with developments in digital publishing, reducing the volume of minor defamation litigation, and capping the size of potential damages awards.

Other Australian jurisdictions are yet to legislate for what is intended to be a national uniform scheme. 

Outlined below are the key reforms:

Public Interest Defence

Modelled on a provision in the UK Defamation Act 2013, a new public interest defence is intended to act as a shield for responsible journalism. The defence requires the defendant to prove, first, that the matter is of public interest, and, second, that the publication is responsible. The Amendment Bill sets out a non-exhaustive list of relevant factors as to what is ‘responsible.’ This list includes the extent to which the matter published relates to the performance of the public function or activities of the person, and the integrity of the sources of information.

Single Publication Rule

The introduction of a single publication rule will make time limits on defamation litigation more significant. NSW had had a multiple publication rule, meaning that each publication of the same defamatory matter created a cause of action, with the limitation period running from each new cause of action. Under the single publication rule, the relevant date for limitation periods will be the first date of publication, even if the publication can be accessed on an ongoing basis.

Serious Harm Threshold

In a measure aimed at curbing small-scale defamation litigation, a new serious harm threshold for defamation claims is to be determined by the judicial officer as soon as practicable before a trial. The Amended Act removes the statutory defence of triviality, which required a defendant to prove that the plaintiff was unlikely to establish any harm from a defamatory publication. In place of that defence, serious harm is introduced as an element of the cause of action for defamation. There will be an onus, therefore, on a plaintiff to prove they have suffered, or are likely to suffer, serious harm in order to bring a successful defamation claim.  

Clarification of Damages Cap

The Amended Act in effect re-imposes a cap on non-economic damages. There was already an upper limit on the amount of compensatory damages that could be awarded for defamation. However, Courts had interpreted that the cap could be exceeded when there was an occasion to award aggravated damages – such as when the actor Geoffrey Rush was awarded $2.9 million in damages, including $850,000 in compensatory and aggravated damages, after his case against the Daily Telegraph. The Amended Act clarifies that the cap applies even if aggravated damages are warranted.

Other changes

The Amended Act also introduces a new defence for peer reviewed matters published in academic or scientific journal. The defence can only be defeated if the plaintiff proves the defamatory material was not published honestly for the information of the public or the advancement of education. And the Amended Act also requires that concerns notices be served with sufficient time for an offer to make amends to be made before proceedings can be commenced.

And the Amended Act makes the provision of a concerns notice a precondition to commencing defamation proceedings. A publisher can make an offer of amends in response to the concerns notice, meaning the reform encourages the resolution of disputes without litigation.

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