SA Introduces Major Defamation Law Reform Bill

The Defamation (Miscellaneous) Amendment Bill 2020 (SA) (the Bill) was introduced into the SA Parliament on 24 September 2020 by Attorney-General, the Hon V A Chapman. The Bill amends the Defamation Act 2005 (SA) and the Limitation of Actions Act 1936 (SA). According to the Attorney-General, the Bill was developed co-operatively with all other Australian jurisdictions and is the first substantial amendment to the Defamation Act since it was initially passed in 2005. The Bill is described by the Attorney-General as a "major milestone in Australian defamation law".

Background

The current Defamation Act 2005 is the SA implementation of the national "Model Defamation Provisions". Those provisions were adopted in each state and territory in 2005 and were the result of an national effort to create "uniform defamation law across Australia". The model provisions are now 15 years old and have not been amended since their enactment. In that time, the Attorney-General believes that the case law and experience accumulated indicate which parts of the legislation are working well and which parts would benefit from being either reconsidered, fixed or given an update.

The Bill follows on from the Council of Attorneys-General (COAG) national Defamation Working Party convened in June 2018 to make recommendations for changes to the model laws. In July 2020 the working party presented recommended amendments to COAG. The recommended reforms were supported by COAG and each state and territory government is in the process of adopting the reform.

Overview

The Bill contains numerous amendments to the Defamation Act 2005. The amendments are described as "ranging from small technical changes to significant and innovative reform with the key purpose of being to ensure that Australia's defamation law continues to meet its main objects as set out in the Defamation Act." 

These objects of the Defamation Act 2005 are:

1.  to enact provisions to promote uniform laws of defamation in Australia;
2.  to ensure that the law of defamation does not place unreasonable limits on freedom of expression, and in particular, on the publication and discussion of matters of public interest and importance;
3. to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
4. to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.

The conclusion of the national consultation process was that these objectives were still considered to be valid and widely supported. However, it was found that there are some aspects of the law where there has been a failing to achieve the objectives.

Reforms Consider Technology and Social Change

According to the Attorney-General, proposed reforms respond to "significant changes in society and technology that have occurred since 2005". When the uniform defamation law was developed, Facebook, Twitter and smartphones were either very new, or not in existence. Their ability to make mass publication available to everyone at any time has significantly blurred the line between public and private disputes.

The Bill seeks to ensure that defamation laws continue to serve the needs of contemporary society. The Defamation Act 2005 currently has an option for a person who thinks they have been defamed to send a "concerns notice" to the publisher of the material, setting out their complaint about the alleged defamation. Clause 9 of the Bill makes this mandatory, and requires a potential plaintiff to send a concerns notice and then serve a waiting period, before beginning court action. The waiting period is equivalent to the time the publisher has to make a statutory offer to make amends. The aim is to encourage parties to more serious pre-action negotiations. The Bill contains protections to ensure a plaintiff does not fall foul of the limitation period while completing these steps, and the waiting period can be waived at the discretion of the court if it is just and reasonable to do so. 

Free Speech and Public Interest

According to the Attorney-General, the Bill will protect free speech and public interest communication through two new defences as follows:

• Clause 15 provides a defence for publications on matters of public interest. The Bill proposes to introduce a standalone defence for matters in the public interest, which has been modelled on defences already available in the United Kingdom and New Zealand. This defence will be useful to the commercial media but it can be used by any person communicating on public interest matters, so long as they can prove they had a reasonable belief that the publication was in the public interest in the circumstances.
• Clause 17 provides protection for academic and scientific publications in peer-reviewed journals, ensuring robust discussion can occur on academic and scientific matters. 

Serious Harm Threshold

Described as "one of the most significant reforms proposed", clause 7 introduces a serious harm threshold for defamation actions. A new test which provides that a publication will not be considered defamatory unless it has caused, or is likely to cause, serious harm to the reputation of the plaintiff.

Essentially, the Bill proposes to "lift the threshold on what is considered an actionable defamation case" requiring plaintiff to demonstrate that the harm, or potential harm, to their personal reputation is serious. The Bill contains mechanisms allowing parties to apply for determinations of the serious harm element before the trial begins, allowing early dismissal of minor cases if appropriate.

"Serious harm" is to be assessed in the circumstances of the particular case and for natural persons it does not have to involve financial loss. 

Single Publication Rule

The Bill further addresses advances in technology through the introduction of a single publication rule in Part 2 of the Schedule. The Limitation of Actions Act 1936 provides a one-year limitation period for defamation actions, which may be extended up to three years by court order; however, the effect of relevant case law is that, each time an internet publication is downloaded, a new limitation period begins, thereby allowing a plaintiff to sue the publication for as long as it remains available online. Thus an internet article that has been online since 2015 can still be the subject of legal action in 2020, provided it was downloaded just once in the previous year. The single publication rule proposed by the Bill instead provides that the limitation period begins the first time the publication is made publicly available, and is unaffected by subsequent publications of substantially the same content.

Cap on Damages

Clause 20 of the Bill provides that the cap should be interpreted as a range of damages for non-economic loss in which the top of the cap represents the appropriate award for the most serious types of defamation. Under the law proposed by the Bill, the cap on damages may not be exceeded under any circumstances. However, if the defendant's conduct was particularly harmful then a separate award of aggravated damages may still be awarded; however, the two parts of the award need to be separate and transparent.

Clause 13 of the Bill will also prevent plaintiffs circumventing the cap on damages. Currently, the cap applies to each legal action, and so if the plaintiff brings more than one action in relation to the same matter, they may be able to circumvent the cap. At the moment, there is no rule against suing related parties separately in relation to the same publication. The Bill addresses this by amending the rules on multiple proceedings to require the leave of the court to bring further proceedings in relation to the publication of the same or like matter by the same or associated defendants. 

Other minor amendments include:

• Clause 5, which broadens how employees are counted when determining if a corporation is small enough to be eligible to sue in defamation;
• Clause 6, which will allow the court to decide questions of costs if defamation action ends due to the death of a party;
• Clauses 10 to 12, which clarify the requirements for making a valid offer to make amends;
• Clause 14, which simplifies the contextual truth defence; and
• Clause 18, which sets out how the basis for an opinion must be presented to make out the honest opinion defence.

The Bill is currently at second reading stage in the SA Assembly.

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 (Miscellaneous) Amendment Bill 2020 (88 of 2020) [SA], 2nd reading speech and explanatory statement, available from TimeBase's LawOne service