New defamation laws come into force from this week in most states of Australia.
The new laws continue a process that was begun in 2005 to bring state laws into alignment and modernise the laws for the internet age.
The major changes in 2005 aimed to stop complainants ‘jurisdiction shopping’ to choose the state with the best chance of winning a case and getting the most damages. Those changes also capped standard damages payments at $250,000; the need to prove public interest was removed in favour of just the defence of truth; and large corporations were prevented from taking defamation action.
The latest changes, enacted in New South Wales, Victoria, South Australia and (just last week) Queensland take those reforms further by enacting Model Defamation Amendments to the state laws. The amendments are the result of a national review process begun in 2018.
The new provisions benefit broadcasters and publishers, but still leave some social media publication issues uncertain in radioinfo’s opinion. They do not address constitutional free speech or journalism source protection issues that media companies have been lobbying for, because these are separate issues to defamation.
In legal terms, Defamation is classified as a Tort, a word which comes from Latin and Old French, meaning ‘injustice’ or ‘wrong.’ Torts are laws that govern types of civil wrongs that people may do to each other, and are different from contract law and criminal law.
Here is radioinfo’s summary of some key areas covered in the new Model Provisions is below, with important sections also quoting from the document.
- Removes the distinction between slander and libel, so that both fall under the one area of defamation (Part 2.1.7)
- Establish a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter (Part 2.8)
- Confirms the definition of large corporations that cannot sue as being corporations with more than 10 employees, and clarifies the definition of employees (Part 2.9)
- Confirms that actions cease when a person dies (Part 2.10)
- Puts the decision about whether ‘serious harm’ has been caused to a complainant in the hands of a judge, not a jury (Part 2.10A). Once a decision about harm has been made then a trial may go a jury if required, but the actual decision about serious harm is made first.
- Defines the legal jurisdiction of Australia in relation to defamation, which may be important in cases where internet publication is made on a foreign website (Part 3.11). The model legislation states: In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account:
(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and
(b) the extent of publication in each relevant Australian jurisdictional area, and
(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and
(d) any other matter that the court considers relevant.
- Specifies that a ‘Concerns Notice’ must be served to the publisher. The notice must be:
(i) is in writing, and
(ii) specifies the location where the matter in question can be accessed (for example, a webpage address), and
(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern), and
(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question, and
(v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question, and
a copy of the matter in question is, if practicable, provided to the publisher together with the notice.
- Sets out how a publisher may offer to make amends within 14-28 days (Part 3, 13, 14 & 15). An offer to make amends:
(a) must be in writing, and
(b) must be readily identifiable as an offer to make amends under this Division, and
(b1) must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made, and
(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited, and
(d) must include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and
(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and
(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer.
In addition to the matters referred to in subsection (1), an offer to make amends may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question…
- Specifies that if the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.
- If the complainant does not accept an offer to make amends, the broadcaster or publisher can then use the offer in their defence of the defamation action (Part 3.18)
- The new rules remove the payment of exemplary or punitative damages, another issue which the media lobbied hard on during the review (Part 4.37).
The rest of this section of the model rules is similar to what already exists, such as the defences of Truth, Privilege and Honest Opinion. One additional defence has been added, which allows for peer reviewed matters published in academic or scientific journals to be used as a defence, so, if in doubt, seek an expert who has had an article published in a peer reviewed academic journal.
Section 4.29A introduces the element of Public Interest as a defence, which is something that media have argued for during the review process. It will help the defence of investigative reports that uncover important issues that lead to changes for the better in society, but it still requires investigative reporters to distinguish between suspicious allegations, the credibility of sources and proven facts. This rightly puts the onus on investigative reporters to do their homework carefully, seek legal advice before publication and give the subject of the investigation a fair chance to put their side of the story. Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances:
(a) the seriousness of any defamatory imputation carried by the matter published,
(b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
(c) the extent to which the matter published relates to the performance of the public functions or activities of the person,
(d) whether it was in the public interest in the circumstances for the matter to be published expeditiously,
(e) the sources of the information in the matter published, including the integrity of the sources,
(f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard),
(g) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published,
(i) the importance of freedom of expression in the discussion of issues of public interest.
Part 4.32 lists the parties that might republish defamatory material, giving them exemption from defamation action. This is interesting because it could apply to networked radio talk shows and to republication by third parties on the internet and social media. It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person:
(a) was not the first or primary distributor of the matter, and
(b) was not the author or originator of the matter, and
(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
(3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:
(a) a bookseller, newsagent or news-vendor, or
(b) a librarian, or
(c) a wholesaler or retailer of the matter, or
(d) a provider of postal or similar services by means of which the matter is published, or
(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or
(f) a provider of services consisting of:
(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or
(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or
(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or
(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.
There is still a cap on damages, but it has been indexed and is now closer to $400,000 maximum damages, from the original cap of $250,000.
If you are a program presenter, producer or reporter or a manager/content director of a station that does interviews and talk content, you need to update yourself on the changes to defamation laws so that you are across the latest version. Also check that your lawyers are up to date on these new model defamation provisions.
All Australian states and territories have agreed to implement these changes, so those that have not yet done so, will do so in the near future.