More discussion on possible amendments to Australia’s uniform defamation laws

Review of defamation laws – are they out of date?

In June 2018, the Council of Attorneys-General formed a Defamation Working Party (DWP) to consider whether Australia’s defamation laws remain appropriate in today’s online, digital climate.

The DWP published an issues discussion paper for consideration and is calling for submissions on potential amendments to Australia’s uniform defamation laws.

Below is an overview of some of the main issues canvassed.  Click here for a link to the full discussion paper.

Do the law’s policy objectives remain valid?

The current objectives of Australian defamation law are to ensure unreasonable limits are not placed on freedom of expression; provide effective and fair remedies for people whose reputations are harmed by publication of defamatory matter; and promote speedy methods of resolving defamation disputes with a view to avoiding the Court process.

A key objective is balancing the protection of an individual’s reputation with the public interest.

The consensus seems to be that those objectives remain valid and important, however the law needs some amending so these objectives are met.

Should corporations be allowed to sue for defamation?

Currently, only corporations that are not-for-profits or have fewer than 10 employees (provided it is not a company forming part of a larger corporate structure) can sue for defamation in Australia.
Consideration is being given to whether this position should be narrowed or expanded.

An argument for narrowing the rule is that no corporation, even with fewer than 10 employees, should be able to sue for defamation to encourage public scrutiny of all public bodies.

The alternative position - allow all corporations irrespective of the number of employees to sue for defamation – is that corporate reputations are a legitimate interest deserving of protection in today’s climate of online trolling and shaming.

Policy reasoning banning corporations from suing is sound – they typically have greater resources and capacity enabling them to conduct strategic litigation that might potentially deter publishers from reporting on them in fear of being sued.  Of course, in this age of social media, faceless posters can upload false, harmful content about a non-excluded company with no fear of being sued for defamation in Australia.

Unlike the United Kingdom1, New Zealand, Canada2 and most states of the United States of America, Australia’s uniform defamation laws currently prohibit a non-excluded company from suing for defamation. 

Should publishers be able to publish fair reports of academic journals and proceedings at a press conference?

There currently exists what is called the ‘publication of public documents’ defence or the ‘fair report’ defence.  In summary, it is a defence if the publisher can prove that the defamatory matter was contained in a public document or a fair summary of, or extract from, a public document and the defamatory matter was published honestly for the information of the public or the advancement of education.

The definition of a ‘public document’ is limited to reports or papers of parliamentary bodies, judgments and orders of courts, public government documents and documents open to inspection that are held by an authority.  The DWP suggests amending the definition of public document to include publications or presentations of scientific or academic conferences and reports of press conferences held to discuss matters of public interest.  The DWP observes that the general defences available under the uniform defamation laws appear to be sufficient to provide a fair report protection for publishers. 

Is a change needed to the approach for the defence of honest opinion?

The current statutory regime provides what is called the ‘honest opinion’ defence whereby it is a defence if a publisher can prove that defamatory matter was opinion, rather than a statement of fact, the published opinion related to a matter of public interest, the opinion was based on ‘proper material’, and an honest person would have expressed a similar opinion based on the general facts.

Things like restaurant, art and concert reviews as well as comments on sporting events and general public affairs often look to the defence for protection from a defamation claim.

The DWP notes that the current provision in the uniform defamation law is unclear as to whether the “proper material” upon which the publisher’s opinion is based must also be published in the same publication.  An abundance of case law indicates that is a requirement. The DWP suggests the law should be amended to make it clear that the ‘proper material’ underpinning the published opinion must be published in the same publication for the honest opinion defence to be available to a publisher.

Do we need a ‘serious harm’ threshold?

One of the most talked about potential changes to our current national defamation laws is the inclusion of a ‘serious harm’ threshold in the legislation.

While there is presently a defence of ‘triviality’ – if a publisher can prove that, in the circumstances of the publication, there was unlikely to be any harm suffered by the ‘defamed’ person – the courts have not been persuaded the defence operates to impose a ‘serious harm’ threshold to be met for a claimant to be able to pursue a defamation claim.

The ‘serious harm’ or ‘minimum harm’ threshold requirement has been introduced as a way of preventing spurious defamation actions from getting going in court.  Its purpose is to put an onus on a plaintiff to show the defamatory matter materially affected their reputation.  The UK has moved to this requirement, and New Zealand case law has shown support for the threshold requirement.

Commentators have shown increased support for the introduction of a serious harm threshold particularly in a climate where studies reveal an increasing number of defamation actions being litigated around the country stem from ‘backyard’ social media driven disputes between private citizens. 

What about damages?

The current uniform defamation laws place a cap for damages for non-economic loss (excluding aggravated damages) of $398,500 (an annually adjusted ceiling which is calculated with reference to CPI increases).  Sums awarded for any proven economic loss suffered by reason of the defamation are uncapped.

The DWP cites the recent successful defamation action by Lloyd Rayney against the State of Western Australia as an example of a large award of damages that can be awarded for economic loss.3

An argument for retaining the cap for non-economic loss is that it keeps the focus of defamation proceedings where they should be - on repairing harm done - rather than giving potential claimants an opportunity to chase the proverbial ‘pot of gold at the end of the rainbow’ in a landscape of uncapped damages.  The cap can also encourage parties to engage in alternative dispute resolution processes to resolve their issues.

Others suggest the cap may give some publishers certainty of the damages playing field whereby calculated, commercial decisions might be taken to publish defamatory matter while factoring in the ‘potential damages cost’ in doing so as opposed to amending possibly defamatory content in an operating environment where damages are uncapped.

The DWP also noted submissions on recent damages awards where aggravating circumstances have led to courts awarding non-economic loss damages at sums well above the ceiling cap.  Arguments were advanced that this was not the intention of the uniform defamation legislation.  Consideration ought to be given to whether this development should be addressed through legislative amendment.

Conclusion

The discussion paper promotes the potential for significant changes being made to Australia’s defamation laws with a view to tweaking things to continue encouragement of striking the right balance between protecting reputation and the freedom to express on matters that are in the public interest.

The submissions close on 30 April 2019.  Unless otherwise requested, all submissions will be made public.

Stay tuned for further discussions.

AUTHOR
Nick Stagg
Partner
AUTHOR
Jasmine Sims
Associate
SERVICES
Corporate Disputes
Litigation and Dispute Resolution


FOOTNOTES

[1] Only if legally incorporated businesses have suffered, or are likely to suffer, "serious financial loss", can they bring a claim of defamation in the United Kingdom.

[2] Canadian academics have suggested Canada follow the Australian approach and rely on the same policy reasoning as is discussed above to limit the capacity of certain corporations from suing for defamation.

[3] Rayney v The State of Western Australia [No.9] [2017] WASC 367 in which the WA Supreme Court awarded the Perth barrister $2.62 million for defamation flowing from police media conferences related to the murder of his wife.