Peter A Clarke

It is something of an understatement that the last few years have been busy in the defamation space.  And generally uncomfortable for the defendants with big awards in the Rebel Wilson (after reduction by the Court of Appeal) and Chris Gale cases.  As significantly has been the proliferation of cases arising out of commentary on line, often through social media.  Another interesting development is the growing preference for plaintiffs to issue proceedings in the Federal Court rather than in the state courts.  This obviates the need for a jury trial, often times a comfort for defendants.  This has resulted in significant comment and calls for reform by news outlets.   

The Council of Attorneys General are in the process of undertaking a review of defamation law. 

On 26 February 2019 the Council released a 43 page discussion paper titled “Review of Model Defamation Provisions.”    The NSW Attorney General also issued a media release.

There are 18 questions posed being:

Question 1

Do the policy objectives of the Model Defamation Provisions remain valid?

Question 2

Should the Model Defamation Provisions be amended to broaden or to narrow the right of corporations to sue for defamation?

Question 3

(a)Should the Model Defamation Provisions be amended to include a ‘single publication rule’?

(b)If the single publication rule is supported:

(i)should the timelimit that operates in relation to the first publication of the matter be the same as the limitation period for all defamation claims?

(ii)should the rule apply to online publications only?

(iii)should the rule should operate only in relation to the same publisher, similar to section 8 (single publication rule) of the Defamation Act 2013(UK)?

Question 4

(a)Should the Model Defamation Provisions be amended to clarify how clauses14 (when offer to make amends may be made) and 18 (effect of failure to accept reasonable offer to make amends) interact, and, particularly, how the requirement that an offer be made ‘as soon as practicable’ under clause 18 should be applied?

(b)Should the Model Defamation Provisions be amended to clarify clause 18(1)(b) and how long an offer of amends remainsopen in order for it to be able to be relied upon as a defence, and if so,how?

(c)Should the Model Defamation Provisions be amended to clarify that the withdrawal of an offer to make amends by the offeror is not the only way to terminate an offer to make amends, that it may also be terminated by being rejected by the plaintiff, either expressly or impliedly (for example,by making a counter offer or commencing proceedings), and that this does not deny a defendant a defence under clause 18?

Question 5

Should a jury be required to return a verdict on all other matters before determining whether an offer to make amends defence is established, having regard to issues of fairness and trial efficiency?

Question 6

Should amendments be made to the offer to make amends provisionsin the Model Defamation Provisionsto:

(a)requirethat aconcerns noticespecify where the matter in question was published?

(b)clarifythat clause 15(1)(d) (an offer to make amends must include an offerto publish a reasonable correction) does not require an apology?

(c)providefor indemnity costs to be awarded in a defendant’s favourwhere the plaintiff issues proceedings before the expiration of any period of time in which an offer to make amends may be made, in the event the court subsequently finds that an offer of amends made to the plaintiff after proceedings were commenced was reasonable?

Question 7

Should clause 21 (election for defamation proceedings to be tried by jury) be amended to clarify thatthe court may dispense with a jury on application by the opposing party, or on its own motion, where the court considers that to do so would be in the interests of justice (which may include case management considerations)?

Question 8

Should the Federal Court of Australia Act 1976(Cth) be amended to provide for jury trials in the Federal Court in defamation actions unless that court dispenses with a jury for the reasons set out in clause 21(3) of the Model Defamation Provisions–depending on the answer to question 7 –on an application by the opposing party or on its own motion?

Question 9

Should clause 26 (defence of contextual truth) be amended to be closer to section 16 (defence of contextual truth) of the (now repealed) Defamation Act 1974(NSW), to ensure the clause applies as intended?

Question 10

(a)Should the Model Defamation Provisions be amended to provide greater protection to peer reviewed statements published in an academic or scientific journal, and to fair reports of proceedings at a press conference?

(b)If so, what is the preferred approach to amendments to achieve this aim–for example, should provisions similar to those in the Defamation Act 2013 (UK) be adopted?

Question 11

(a)Should the ‘reasonableness test’ in clause 30 of the Model Defamation Provisions (defence of qualified privileged for provision of certain information) be amended?

(b)Should the existing threshold to establish the defence be lowered?

(c)Should the UK approach to the defence be adopted in Australia?

(d)Should the defence clarify,in proceedings where a jury has been empanelled, what, if any, aspects of the defence of statutory qualified privilege are to be determined by the jury?

Question 12

Should the statutory defence of honest opinion be amended in relation to contextual material relating to the proper basis of the opinion, in particular, to better articulate if and how that defence applies to digital publications?

Question 13

Should clause 31(4)(b)of the Model Defamation Provisions (employer’s defence of honest opinion in context of publication by employee or agent is defeated if defendant did not believe opinion was honestly held by the employee or agent at time of publication) be amended to reduce potential for journalists to be sued personally or jointly with their employers?

Question 14

(a)Should a ‘serious harm’ or other threshold test be introduced into the Model Defamation Provisions, similar to the test in section 1 (serious harm) of the Defamation Act 2013(UK)?

(b)If a serious harm test is supported:

(i)should proportionality and other case management considerations be incorporated into theserious harm test?

(ii)should the defence of triviality be retained or abolished if a serious harm test is introduced?

Question 15

(a)Does the innocent dissemination defence require amendment to better reflect the operation of Internet Service Providers, Internet Content Hosts, social media, search engines, and other digital content aggregators as publishers?

(b)Are existing protections for digital publishers sufficient?

(c)Would a specific ‘safe harbour’provision be beneficial and consistent with the overall objectives of the Model Defamation Provisions?

(d)Are clear ‘takedown’procedures for digital publishers necessary, and, if so, how should any such provisions be expressed?

Question 16

(a)Should clause 35 be amended to clarify whether it fixes the top end of a range of damages that may be awarded, or whether it operates as a cut-off?

(b)Should clause 35(2) be amended to clarify whether or not the cap for non-economic damages is applicable once the court is satisfied that aggravated damages are appropriate?

Question 17

(a)Should the interaction between Model Defamation Provisions clauses35(damages for non-economic loss limited)and 23 (leave required for further proceedings in relation to publication of same defamatory matter) be clarified?

(b)Is further legislative guidance required on the circumstances in which the consolidation of separate defamation proceedings will or will not be appropriate?

(c) Should the statutory cap on damages contained in Model Defamation Provisionsclause35 apply to each cause of action rather than each ‘defamation proceedings’?

Question 18

Are there any other issues relating to defamation lawthat should be considered?

The paper covers significant territory, suggesting significant changes are being contemplated.  Areas of interest are:

• a review of the the defences of contextual truth
• review of qualified privileged defence and whether a public interest test should apply and who should decide that, the judge or a jury;
• the possible introduction of a single publication rule and
• juries for the Federal Court.
• the operation of the law in the era of internet communication including whether that the innocent dissemination defence should be amended
•  the operation of ‘takedown’ procedures for digital publishers.
• whether the law should broaden or narrow the right of corporations to sue for defamation.
• the defence of triviality and whether it should be replaced by a threshold of “serious harm”

The closing date for submissions is 30 April 2019.