At the meeting of the Attorneys General for New South Wales, South Australia, and Victoria held on 31 March 2021, it was agreed that the amendments to the Defamation Act would commence on 1 July 2021. Remaining jurisdictions have agreed that they will commence those amendment provisions as soon as possible thereafter. The Defamation Amendment Bill was tabled before the Queensland Parliament on 20 April 2021 and there was a second reading of the same on 4 June 2021.
Once assented to it is anticipated that the legislation will cover a number of significant changes to the law of defamation. There will be contemporaneous changes made to some of the provisions of the Limitation of Actions Act. The changes that are contemplated are summarised as follows: -
- The introduction of a single publication rule so as to ensure that the current 1 year limitation period for each publication runs from the date of the first publication or in the case of an electronic publication the start date runs from when an item is uploaded or sent to the recipient.
- Greater flexibility in appropriate circumstances in order to extend the statutory time limitation period so as to enable pre-trial processes to be concluded.
- The introduction of the test of serious harm as a necessary element in defamation actions making it necessary to establish that a plaintiff has suffered serious harm or in the case of a corporation, proof that serious financial loss has been caused or is likely to be caused by the publication.
- The abolition of the defence of triviality.
- The imposition of the requirement for a plaintiff to give a concerns notice, prior to commencement of defamation proceedings, which, except in exceptional circumstances, will generally allow publishers a minimum of 28 days in which to make amends.
- Amendments in respect of the defence of contextual truth so as to enable a defendant to plead back imputations as relied upon by a plaintiff.
- The introduction of a defence for the publication of defamatory matter concerning an issue of public interest with consequential amendments to the existing defence of qualified privilege.
- Provision of a new defence in respect of peer-reviewed matter as published in academic or scientific journals.
- Amendments in respect of the determination of the question as to what constitutes 'proper material' for the purposes of a defence of honest opinion.
- The introduction of restrictions in respect of the maximum amount of damages to be awarded for non-economic loss, regardless of whether or not aggravated damages are awarded.
- The introduction of a provision specifying that a party's withdrawal of the election for proceedings to be tried by jury to be either by consent of all the parties or with the leave of the court.
- Provisions in respect of the determination of costs questions due to the death of a party prior to trial.
- The introduction of provisions allowing for notices and/or documents to be sent via the relevant email address of the recipient.
Some of the above changes were previously detailed in my article entitled "Defamation Reform" published in August last year.
If you have been threatened with a defamation claim or received a concerns notice, do not hesitate to contact us today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.