A New Era: Defamation Law Reform

The NSW Government is heralding a new era in national defamation law effective from 1 July 2021, across a majority of Australian jurisdictions. The defamation reforms embodied in the Defamation Act NSW (2005) are designed to unclog courts from trivial claims, support public interest journalism, modernise defamation laws in line with developments in digital publishing and capping potential damages awards.

What are the key reforms?

Public Interest Defence

In parallel with the Defamation Act 2013 (UK), a new public interest defence is intended to act as a shield for responsible journalism. The defence requires that the defendant prove the following elements:

1. that the matter is of public interest; and
2. that the public is responsible, that is 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 crucial. NSW formerly had a multiple publication rule, whereby each publication of the same defamatory matter created a new cause of action with a reset limitation period.

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. This is particularly relevant in the realm of digital publishing and distribution across multiple online platforms (including social media).

Serious Harm Threshold

In a measure aimed at curbing small-scale defamation litigation, a new serious harm threshold for defamation claims will be determined by a judicial officer before trial. The Amended Act will introduce ‘serious harm’ as an element of the cause of action. There will be an onus placed on the plaintiff to prove that they have suffered, or are likely to suffer, serious harm in order to bring a successful defamation claim.

Cap on Damages

The Amended Act re-imposes a cap on non-economic or pecuniary damages. There was previously an upper limit on the amount of compensatory damages that court be awarded for defamation. However, the Amended Act clarifies that the cap continues to apply even if aggravated damages are warranted.

New Shields

The Amended Act also introduces a new defence for peer reviewed matters published in academic or scientific journals. 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.

Furthermore, the Amended Act mandates the new requirement whereby concerns notices are served with sufficient time for an offer to make amends to be made before proceedings are commenced. A concerns notice is also now a precondition to defamation proceedings.

How can we assist?

Are you a small to medium enterprise with a negative review online which is false and misleading? Do you want to remove unfavourable media or content about you on an online platform?

Contact the defamation team at Antunes Lawyers on (02) 9964 0499 to discuss your options in light of the new legislation today.