The NSW government passed the Defamation Amendment Bill 2020 (NSW) on 6 August 2020, making NSW the first state in Australia to step toward legislative changes in accordance with the new Australian Model Defamation Provisions.
As our principal Greg Martin says:
“These are good changes, which will prevent multiple claims and bring defamation in line with other legal remedies. However, being aggrieved is not enough, and you must suffer serious harm.
The second raft of changes will be due soon. They will include the responsibility and liability of digital platforms for online content. I look forward to those, so that our defamation laws can enter the 21st century.”
The aims of the changes are to prevent and reduce minor defamation litigation, resolve legislative aspects that failed to operate as intended, update the law to reflect the growth of social media and publication platforms since 2005 and protect both freedom of expression and victims of defamation.
The key reforms passed by the NSW government include:
Serious Harm Threshold
Serious harm is now an element of a defamation cause of action – prior to commencing proceedings, the plaintiff (the victim of the defamatory behaviour) must prove that they either have or are likely to suffer serious harm as a consequence of the defamation.
This replaces the triviality defence, under which the defendant (the defamatory party) could escape liability by proving that the plaintiff was unlikely to establish harm.
The change aims to reduce small-scale or minor defamation litigation.
Public Interest Defence
Defendants will now be able to use a “public interest defence” by proving that (1) the matter is of public interest, and (2) the publication is responsible, for which relevant factors may include the integrity of sources and how closely the publication relates to the public function or activities of the person.
This defence aims to protect responsible journalism from defamation claims.
Single Publication Rule
Previously, where defamatory content was published multiple times, limitation periods ran from the date of each publication. A new cause of action was created with each publication, even if the defamatory matter was the same. Under the new law, the relevant date is the first date of publication. The current limitation period is one year running from the date of publication.
Clarification of Damages Cap
Originally, non-economic damages were capped, but that upper limit could be exceeded under aggravated damages. Under the new law, the cap on compensatory damages applies despite an award of aggravated damages.
Peer Review Defence
There is now a brand new defence for matters that have been peer-reviewed and published in academic or scientific journals – the plaintiff may defeat the defence by proving that the content was not published honestly for public information or education.
Concerns Notices Requirement
The plaintiff must serve a Concerns Notice in order to allow the defamatory party an offer to make amends. This is now a pre-condition to the issue of proceedings, allowing publishers the opportunity to make amends and resolve disputes without litigation.
In summary, serious harm must be suffered before you can commence defamation proceedings. The idea is to prevent multiple claims or publications.
However, you must still be defamed, and you have to issue a Concerns Notice prior to issuing proceedings. The publisher can make an offer of amends, which may include an apology or financial settlement.
If you would like more information or require legal assistance with any legal matter, call Greg Martin on 02 9687 9322.