Model Defamation Bill released for consultation

December 2, 2019 |

The Defamation Act 2005 was due for a review in 2010.  Five years late the Council of Attorney Generals released, late last week a Model Defamation amendment.  The consolidated Act, if the amendments are implemented, are found here.  The New South Wales Attorney General has taken the lead in drafting the Bill.  That is not surprising given that the vast majority of defamation proceedings are issued in New South Wales.

Submissions close on Friday 24 January 2020.

The Background paper highlights the key amendments as, at page 4:

  • Introducing a serious harm threshold to require plaintiffs to establish that a publication caused, or is likely to cause, serious harm to their reputation; 
  • Introducing a single publication rule to provide that the applicable one-year limitation period runs from the date material is uploaded to the internet;
  • Strengthening requirements to encourage parties to settle disputes without resorting to litigation, by making it mandatory to issue a concerns notice and clarifying when a publisher’s reasonable offer to make amends will give rise to a defence; 
  • Introducing a new public interest defence, modelled on the New Zealand common law defence of responsible communication on a matter of public interest; 
  • Introducing a new defence for peer-reviewed statements and assessments in scientific and academic journals; and 
  • Clarifying that the cap on damages for non-economic loss operates as a scale, and that aggravated damages are awarded separately to damages for non-economic loss.

Other amendments include:

  •  clarifying that the persons to be counted as ‘employees’ include individuals engaged in the day to day operations of the corporation, and who are subject to its direction and control
  • Requiring “excluded corporations” to show that the publication has caused, or is likely to cause, serious financial loss.
  • amending the relevant limitation period to extend the one year limitation period in a manner similar to that of section 32A of the Limitation Act 1980 (UK), with an outer limit of three years.
  • making it mandatory that an aggrieved person issue a concerns notice in writing to a publisher prior to commencing court proceedings.
  • providing that, for the purpose of the defence to an action for defamation the relevant period in which an offer must be made by the publisher is the period that is “as soon as reasonably practicable”, and in any event within 28 days of receipt of a concerns notice.
  • introducing a new requirement for an initial offer to make amends to remain open for acceptance for a period of not less than 28 days from the date of offer.
  • introducing a new provision to provide that the limitation period is extended if a concerns notice isissued prior to the expiry of the limitation period, for the duration of the pre-trial process.
  • requiring that the offer to make amends defence is to be determined by the judge.
  • providing that an aggrieved person must specify in the concerns notice the location of the publication of the defamatory matter (for example the URL).
  • requiring that an offer to make amends include an offer to publish a reasonable correction, clarification or inclusion of additional information.
  • clarifying that an offer to make amends does not require an apology.

Most of the changes will significantly improve the operations of the Defamation Act and improve the balance between protecting reputation and protecting freedom of speech.

The amendments will mean that damages will no longer be presumed.  Greater care will need to be given to a concerns letter as it is likely that the plaintiff will be held to the imputations contained in it for the purpose of pleading.  For seasoned practitioners that should not pose a problem.  For solicitors unfamiliar with pleading but keen to send a concerns letter that may limit what counsel can do in pleading a statement of claim or running the matter at trial.

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