New South Wales recently introduced major reforms to its defamation laws, with more states expected to follow suit. Find out the latest here.
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On August 7, 2020, the New South Wales Parliament passed the 2020 Amendment to Defamation Act (the Act), which amends the Defamation Act 2005 (NSW) (the Act). The start of the amended law has not yet been determined, but this signals the start of major reforms to Australia’s libel laws, with other states awaiting similar changes.
The changes to NSW’s libel laws aim to reflect the current digital age, reduce the number of trivial claims, protect public interest journalism, and limit excessive payouts. The following are the main changes and what they mean for defamation claims in New South Wales.
What are the changes?
Serious Damage Threshold
The law introduced a new “grave harm” element for the Defamation Act. That is, the plaintiff must demonstrate that the material published by the defendant has caused, or is likely to cause “serious damage” to its reputation. A judicial officer must ascertain this as soon as possible before starting a proceeding. If the judicial officer finds that the accused has not caused serious harm, the plaintiff’s libel suit cannot proceed. This change reflects the elimination of the defense of “triviality”. This shifts responsibility to the plaintiff to prove that the defendant has caused serious harm, as opposed to having the defendant prove that the plaintiff’s allegation is trivial.
This change filters out the large number of claims that are not serious enough to warrant litigation. An increasing number of people had gone to court over minor claims such as neighborhood spats and comments on social media. With this amendment, only claims will be brought before the Court of Justice alleging seriously harmful conduct. This saves the parties legal costs and shortens the backlog in court.
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Defense of the public interest
The law also introduced a new defense of public interest. That is, if the publication “concerns a problem of public interest,” the accused will not be guilty of defamation.
This change is designed to allow journalists to report on matters of public interest without fear of being sued for defamation. Public interest matters may include the activities of government officials or corporate individuals.
Single publishing rule
The “single publication rule” is also introduced. This refers to the limitation period within which a person can bring a suit for defamation of a publication, which is one year. According to this rule, the limitation period begins with the date of the first publication of the material. After this period, a person cannot sue this publication.
This rule replaces the “multiple publishing rule”. If a defendant republishes the same publication under this rule, the limitation period begins again on the date of the subsequent publication. Many stakeholders have expressed concerns about this rule, especially because publishers store a lot of material online. Every time a person downloaded material it was considered “published”. This meant that the statute of limitations for digital publications may have been unlimited. A person could unearth uploaded online content years ago and sue for defamation. The new rule aims to prevent this by counting the statute of limitations from the date the material was first published or in the case of online uploads of online content.
Upper limit for damage
The bill also made it clear that premiums for non-economic losses (e.g. psychological damage) are capped at the “maximum amount”. That amount is currently $ 421,000 per law. In addition, the Court of Justice should grant the maximum amount “only in a serious case”.
These changes result from the uncertainty about whether there is a limit on non-economic loss premiums, which leads to excessive premiums. The Court had previously ruled that this “maximum amount” limit does not apply where increased damages are justified (due to particularly humiliating or outrageous behavior on the part of the defendant). This resulted in massive defamation payments to the plaintiffs. One example is the $ 2.9 million payout to actor Geoffrey Rush after he won his lawsuit against the Daily Telegraph. This change will ensure that the Court of Justice does not award such enormous amounts.
In addition, the bill stipulates that an injured person must provide the publisher of the alleged defamatory material with a “statement of concern”. The announcement must inform the publisher about the allegedly defamatory material. It must also be stated how the publication did serious damage to their reputation. The parties cannot initiate legal proceedings unless it has been 28 days since the plaintiff issued the notice of concern and the publisher failed to accept a reasonable offer to amend it.
The purpose of this section is to enable the parties to resolve their differences without going to court. It also enables the plaintiff to check whether the damage is serious enough to his reputation to warrant legal proceedings.
Contextual Truth Defense
The bill also clarifies the contextual defense of the truth. This defense applies when a publication contains both truthful and untrue statements but is by and large essentially true. In this case, the defendant can argue that the alleged defamatory statements do not further damage the plaintiff’s reputation as the disclosure is largely true.
Scientific or academic peer-reviewed defense
In addition, the bill also provides defense for peer-reviewed scientific or academic publications. If a defendant proves that he published the material in a peer-reviewed scientific or academic publication, he is not liable for defamation.
Overall, the draft law aims to reconcile the interests of the defendant with the interests of the plaintiff on an equal footing. The changes to the NSW defamation laws also aim to reduce the number of unnecessary lawsuits. Eventually, certain groups such as journalists and scientists receive more protection as their work is seen as beneficial to society. If you are in New South Wales and are considering suing for libel, make sure you understand the changes to NSW’s libel laws so you know if it is worth going to court. For those in other states, be prepared for change to come.