A ‘new era’ for defamation law is beginning

A ‘new era’ for defamation law is beginning

29 June 2021 By Jerome Doraisamy

For almost all Australians, the new month marks a “turning point” for defamation law, says NSW Attorney-General Mark Speakman.

In recent years, NSW has been spearheading a movement to update defamation laws such that they are “fit for purpose in this digital age”.

In a statement from 2018, Mark Speakman (pictured) argued: “Responsibility for defamation law falls to individual states and territories, but in the digital age where publications cross state and territory boundaries, a national approach to reform is essential.”

Reforms to defamation law were committed to by the Council of Attorneys-General, now known as the Meeting of Attorneys-General (MAG), back in late 2018. Following a comprehensive review process, in July 2020, the MAG agreed that each jurisdiction would act as quickly as possible to introduce the Model Defamation Amendment Provisions in their respective parliaments.

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The key changes included in this tranche of reforms are greater clarity on the operation of the cap on non-economic damages, the introduction of a new public interest defence, the introduction of a serious harm threshold for defamation claims, the introduction of a single publication rule (to enable the limitation period to run from the first publication of allegedly defamatory material), requirements that concerns notices be served with sufficient time for amendments to be made before commencing proceedings, and a new defence for peer-reviewed matters published in academic or scientific journals.

Shortly after the July meeting of MAG, NSW became the first jurisdiction in the country to pass the extensive defamation law reforms and, at a March meeting, the nation’s attorneys-general agreed that all remaining jurisdictions “would have to act” so that the provisions could commence in July of this year.

Now, a “new era” is here for more than 85 per cent of Australians, the NSW Attorney-General’s Department has proclaimed, with the first tranche of reforms coming into force.

Speaking ahead of the commencement of the new laws on Thursday, 1 July 2021, Mr Speakman said that the new laws – which will also commence in Victoria, Queensland, South Australia and, most likely, the ACT – are significant for the future of defamation law in this country.

“Tomorrow will mark a turning point for defamation law that will strike a better balance between protecting reputations and freedom of expression,” he proclaimed.

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“I urge remaining jurisdictions to implement the agreed legislation so Australia can have consistent and modern defamation laws.”

As reported in April by Lawyers Weekly, the reform process recently had a breakthrough on the capacity of social media sites and search engines to face liability for potentially defamatory material that is published.

Speaking at the time, Mr Speakman said that when the uniform defamation laws were drafted more than 15 years ago, social media was in its infancy and “trolls were confined to children’s books”. The new review would acknowledge that “times have changed”, he noted, and will ask whether internet search engines should be responsible for content posted by users.

That review is also asking whether defamation law discourages reporting alleged crimes and unlawful conduct to police, disciplinary bodies and employers. This portion of the review is being led by Victoria. 

Submissions made in response to the Stage 2 Discussion Paper of the reforms are now being reviewed, the NSW A-G’s Department noted.

In May 2020, Mr Speakman spoke on The Lawyers Weekly Show about pandemic-inspired changes to the law and how he perceived legal professionals in NSW to be faring in the face of COVID-19. In March 2019, Marque Lawyers managing partner Michael Bradley discussed the need for reform to defamation laws on The Lawyers Weekly Show in the wake of the #MeToo era.

A ‘new era’ for defamation law is beginning
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