Australia’s defamation laws have not been reformed since the introduction of the Uniform Defamation Acts in 2005. While the laws have remained the same, technology and the internet have continued to develop, changing the ways in which we publish, interact with and distribute information. Social media has also boomed, with platforms like Facebook and Twitter providing easily accessible forums for people to voice their opinions and reach a widespread public audience at the touch of a button.
In 2005, the Australian states and territories enacted model defamation provisions to create a relatively uniform set of defamation laws across Australia. These defamation laws (which are substantially unchanged) were designed to address defamation issues in traditional print media and traditional broadcasting via radio and television. However, these laws are becoming increasingly ill-suited to modern scenarios.
Defamation laws in desperate need of reform
It is widely acknowledged that the defamation laws require a “digital makeover”. The review is long overdue given that, at the time the uniform defamation laws were enacted, Facebook had only just launched and today’s common terms of “Twitter”, “iPhone” and “Instagram” were meaningless.
While celebrities like Rebel Wilson and Geoffrey Rush and prominent Perth Barrister Lloyd Rayney have kept the current defamation laws in the public spotlight in recent years, there has been a significant rise in defamation disputes involving social media platforms. Courts increasingly have to contend with trivial or frivolous claims made by individuals where the time and costs involved are often highly disproportionate to the interests at stake. So we pose the question, is there a better way to resolve disputes about defamatory comments posted on social media platforms?
Last year, following a statutory review of the Defamation Act 2005 (NSW), the Department of Justice in New South Wales kick-started the reform process by recommending a raft of reviews to modernise the model defamation provisions. Perhaps reflecting the views of some commentators that Sydney is now the defamation capital of the world, the department has also driven the national review of those laws which is currently being undertaken by the Council of Attorneys-General (COAG) (see the Discussion Paper published last month which makes further recommendations and identifies a list of questions as a guide for discussion).
Recommendations
Some of the issues identified in the Discussion Paper which, in our view, are likely to stimulate wide-ranging debate are:
- Should all corporations have the right to sue?
Should the provisions around the rights of corporations to sue for defamation be broadened or narrowed? Under the current laws, only small “mum and dad” type companies or those which operate on a not-for-profit basis can sue for defamation. Should we revert to the pre-2005 position and allow corporations to sue, regardless of their size or whether they operate for profit, if they can prove serious harm?
- The role of judges and juries in defamation cases
There are currently inconsistencies in the role of juries in different jurisdictions in Australia. There has been a proliferation of defamation matters commenced in the Federal Court by plaintiffs (e.g. Geoffrey Rush) to eliminate the perceived risk associated with a jury trial (which is an option generally available in the State Courts). This arguably encourages “forum shopping”. This then raises the fundamental question of whether jury trials should continue to be an option available to either party in a defamation action or removed entirely. If they remain, the respective roles of juries and judges need to be clarified.
- The damages recoverable in defamation proceedings - is there still a “cap”?
There is confusion surrounding the maximum damages amount recoverable under the existing defamation laws. Although there is currently a statutory cap on damages for non-economic loss in defamation matters, the effectiveness and operation of this cap was questioned during the recent defamation proceedings brought by actress Rebel Wilson. In this case, the court ruled that the statutory cap can be exceeded whenever an award of aggravated damages is warranted. This ruling potentially undermines the effectiveness of the statutory cap in a way that was not contemplated when the uniform defamation laws were passed in 2005, and needs to be clarified.
- Single publication rule
The limitation period for bringing defamation proceedings is currently one year from the date of publication of defamatory material. This is problematic in the digital age as “publication” occurs when information is downloaded to a computer. This means that each time an internet user accesses and downloads information from a webpage, a publication under defamation law is taken to have occurred (commonly known as the “multiple publication rule”). It has been suggested that the “multiple publication rule” is ill-suited to the digital age and that a “single publication rule” should be adopted.
Under the “multiple publication rule”, a new limitation period commences each time a person downloads potentially defamatory material. As a result, publishers of potentially defamatory material could remain liable for years after the original publication of information, if the original publication continues to be downloaded. In the past this concern has been mainly felt by large media companies publishing material online. As social media becomes even more prevalent, the issue is of increasing relevance for individuals using social media platforms, due to the accessibility and somewhat permanent nature of online information.
In our view, it is undesirable for a new limitation period to commence each time a person downloads potentially defamatory material. The introduction of a single publication rule for online material has much to commend it.
- Dealing with trivial claims
It is currently a defence to the publication of defamatory matter if the defendant proves that the plaintiff was unlikely to sustain harm to their reputation from the publication. A reform suggested in the Discussion Paper is the introduction of a threshold of harm test, which would place the onus on the plaintiff to establish at the outset that he or she has suffered real harm to their reputation through the publication of allegedly defamatory material. A similar test was introduced in 2013 to UK defamation laws and the results so far suggest a reduction in the number of claims being pursued through the courts.
- Offers to make amends
The two dispute resolution options available under the current defamation laws as an alternative to litigation are the provisions relating to the making of “offers to make amends” and tendering apologies. While there is general support for these provisions because they are perceived to be a useful tool for early settlement, there is a need for clarity relating to the timeframe for making offers to amends, and the circumstances in which the jury should be told about any apology offered by the defendant.
It is no surprise that journalists and media organisations are strong supporters of defamation law reform in Australia with many viewing the current system as being “stacked against them”. They argue that the current laws are curtailing journalists’ efforts to pursue public interest stories due to the possibility that a defamation case may be brought against them (and the likelihood of significant legal costs they would face to defend themselves).
Have your say
The discussion paper calls for submissions from the public, the closing date for which is Tuesday, 30 April 2019. Members of the public are encouraged to have their say as feedback will play a vital role in reforms to defamation law across Australia. Submissions on the discussion paper can be sent to [email protected].
It is hoped that the COAG process will result in some long-overdue reforms of Australia’s defamation laws which address the reality of the current digital age. We will keep you updated on the progress of the reforms but in the meantime, if you would like to discuss the defamation laws in their current form or the suggested reforms, please contact Brett Bolton from the HopgoodGanim Lawyers’ Dispute Resolution team.