In recent years, our plaintiff-friendly defamation laws have had a chilling effect on press freedom. Defamation cases like those of Geoffrey Rush, Rebel Wilson and Chris Gayle have left the media gun-shy, fearing huge payouts at a time when their economic viability is already in question.
Finally though, some relief. The states have agreed to implement a suite of updates to our defamation regime. Incoming defamation law reforms will grant better protection, and more certainty, to news publishers. Here are the changes that will benefit the press.
- Serious harm: a plaintiff will have to establish that the publication caused them serious harm. This should deter or provide a basis to dispose of minor claims.
- Public interest defence: there will be a new defence for publications in the public interest. This is broader than the current qualified privilege defence and more likely to apply to news stories. In assessing the defence, the court can consider a range of factors which include the importance of freedom of expression.
- Single publication rule: the limitation period for a claim will run from when an online story is first uploaded. Currently the limitation period starts over each time a story is downloaded and read, making the limitation period largely pointless. On the flipside, the court will have more flexibility to extend the limitation period.
- Cap on damages for non-economic loss: the statutory damages 'cap' will be clarified; it is to be treated as setting a scale with the maximum amount being awarded only in the most serious cases. Aggravated damages (if awarded) will be assessed separately. This gives publishers greater certainty about their exposure, and avoids aggravation operating as a basis to set aside the 'cap', which has been the approach in recent cases.
- Clarification of honest opinion defence: this defence applies to opinions published in the public interest and based on 'proper material'. The amendments will clarify that the 'proper material' must be set out in the story, notorious, accessible by a link in the story, or otherwise apparent from the story's context.
But wait is there more? There are also a bunch of changes to the procedure for defamation claims. Annoyingly, the cause of action for small or non-profit corporations survived the review. We argued against this remaining; a reputation is a human thing, not a corporate thing, and companies have other laws to protect them like misleading or deceptive conduct. The only change is to clarify how to assess to which corporations the laws apply.
Overall though? We're pretty happy with these reforms. They're a good win for publishers. And about time too.
We do not disclaim anything about this article. We're quite proud of it really.