Australian states have agreed to a dramatic overhaul of “outdated” defamation laws in a bid to protect public interest journalism and curb escalating damages payouts.
The New South Wales attorney general, Mark Speakman, on Monday announced sweeping changes, outlining a plan to “reset” laws which he said had resulted in “crippling damages payouts, chilling public interest journalism and clogging courts with minor claims”.
The changes were signed off on Monday by the council of attorneys general after an 18-month review led by NSW. The new laws, which the council’s memorandum said would be introduced by individual states “as soon as possible”, will include a new public interest defence based on UK legislation and a “serious harm” provision to “help unclog our courts from minor claims”.
Recent high profile defamation cases against Australian publishers have resulted in large payouts, most notably the actor Geoffrey Rush’s record $2.9m over the publication of allegations of sexual misconduct by Sydney tabloid the Daily Telegraph.
Introduced in 2013, the UK’s public interest defence requires publishers to prove both that the statement was a matter of public interest, and that they believed publishing it was in the public interest.
Speakman, who initiated the review in 2018, said Australia’s defamation laws had been “enacted before social media and online news coverage” and were now outdated.
“Social media has resulted in an explosion of minor cases over minor personal slights, clogging courts with costly litigation out of all proportion to the actual complaint,” he said.
“These reforms will bring defamation laws into the modern era, improving the balance between protecting reputations and free speech.”
The new laws aim to reduce ballooning damages by “clarifying” the cap on payouts, and seek to deter minor claims by introducing a serious harm threshold.
The threshold will require plaintiffs to “prove actual or likely serious harm to their reputation from the publication”.
Another change long called for by media outlets will create a single publication rule.
Currently, courts judge the publication date for online material as being the date it was “downloaded”, rather than the date the material was first published. It means that limitation periods for defamation claims related to material online are in effect extended indefinitely.
In its submission to the review of defamation laws, the Law Council of Australia strongly recommended the introduction of a single publication rule on the basis that the current laws often put defendants at a disadvantage.
“The rule permits a plaintiff to commence proceedings in relation to an online publication first published many years before and well after the expiry of the uniform limitation period of one year, on the basis of a handful of downloads in the 12 months before action, despite never having taken action in relation to the initial publication of the matter later complained of,” the submission said.
“Internet publishers that continue to host material that may be of important public interest, forming part of the historical public record, are exposed to defamation claims long after an article was first posted online. Further, a publisher facing a claim over an article published years earlier will often be prejudiced in its defence, in that key evidence may no longer be readily available and/or staff and sources may have moved on or become unwilling to assist.”
“Once enacted by Australia’s parliaments, these reforms will represent a generational change in the way reputations are protected while supporting the role of the media to subject the powerful to responsible scrutiny, but there is still more work to be done,” Speakman said.
In the lead up to Monday’s meeting, campaign groups had also been pushing for a change to Australia’s minimum age of criminal responsibility from 10 to at least 14.
Last year the council assembled a working group to review the issue, and as expected declined to make any change. Instead, it noted the working group had “identified the need for further work to occur regarding the need for adequate processes and services for children who exhibit offending behaviour”.