NSW Bill Proposes Changes to Defamation Laws

On 29 July 2020, the New South Wales Attorney-General Mark Speakman introduced the Defamation Amendment Bill 2020 (NSW) (“the Bill”) to the Legislative Assembly. The Bill seeks to amend the Defamation Act 2005 (NSW) (“the Act”) and the Limitation Act 1969 (NSW) in order to implement the first stage of reforms to Australia’s Model Defamation Provisions, as approved by the Council of Attorneys-General (“CAG”).

The Model Defamation Provisions and its Review

The Model Defamation Provisions were endorsed in 2005, and by mid-2006 were enacted in all states and territories as legislation. In January 2019, the states and territories committed to a review and overhaul of the defamation laws. In February 2019, the Review of Model Defamation Provisions Discussion Paper (“the Discussion Paper”) was released for public consultation. The Model Defamation Provisions and the Discussion Paper were discussed in an earlier TimeBase Article.

There were six main themes that emerged from stakeholder submissions for the discussion paper:

1. That the laws must be modernised in order to adapt to new digital communications
2. Defamation law was increasingly used for trivial and vexatious matters
3. There were insufficient incentives to resolve disputes without litigation
4. There was need for a public interest defence in order to protect journalists and media organisations to report on public concern matters
5. Clarification was required in the role of judges and juries in defamation cases
6. Clarification and requirement were required on some legislation.

Following the Discussion Paper, the draft amendments to the Model Defamation Provisions was released for public comment in November 2019. On 27 July 2020, the CAG approved these amendments.

These amendments aims to improve the balance between the protection of individual reputations and freedom of expression, especially in matters of public interest, and are the first stage of reforms to be made to defamation laws. The CAG is scheduled to meet again later in the year in order to work towards the release of another discussion paper for the second stage of reform. The second stage of reforms will focus on the responsibilities and liabilities of digital platforms, regarding matters such as defamatory content published online.

The Bill

One of the main amendments the Bill seeks to introduce is a serious-harm threshold. Under the current Act, all publications of defamatory matters are actionable, unless the defendant can prove that the plaintiff was unlikely to sustain any harm. However, this amendment will require serious-harm has been caused, or is likely to be caused, to a person’s reputation, in order to bring a cause of action for defamation.

The judicial officer will be the one to determine if the element is established. This determination can also be made prior to the trial, at either the judicial officer’s own motion or on the application of a party. If a party makes such an application, the judicial officer is to make the determination as soon as practicable, before the trial commences, unless they are satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding.

Other amendments proposed by the Bill include:

• The provision that certain individuals be counted as employees in determining whether the corporation can sue for defamation
• The requirement of a concerns notice to be given to a publisher prior to the commencement of defamation proceedings against the publisher regarding the same matter
• Introduction of a defence for the publication of defamatory material concerning public interest issues
• Introduction of a defence in regards to peer reviewed matters published in academic or scientific journals
• The provision that an election to have defamation proceedings trued by jury can be revoked with the consent of all the parties, or with leave of the court on application of a party
• Allowing for the limitation period for commencing defamation proceedings to be extended in order to enable pre-trial processes to be concluded.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Defamation Amendment Bill 2020 (NSW)  and additional materials available from TimeBase's LawOne Service

Review of Model Defamation Provisions (NSW Government Communities and Justice)