On 20 April 2021, Queensland Attorney-General and Minister for Justice Shannon Fentiman tabled a bill before the Queensland Parliament that is aimed at making significant amendments to the Defamation Act 2005 (Qld). If passed, the amendments to the Act are expected to take effect from 1 July, 2021.
The proposed amendments follow wide-ranging consultations with media companies, peak legal bodies, academics, digital platforms and lawyers who have represented both plaintiffs and defendants, and seek to provide greater clarity to the courts, the community and the media, while also protecting freedom of expression, and ensuring open and transparent reporting.
New South Wales, Victoria and South Australia have already passed amendments that make the same amendments contained in the Bill. The Bill, having been read a first time, has now been referred to the Legal Affairs and Safety Committee for consideration.
The key reforms introduced by the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021, which follow meetings between the State and Territory Attorneys-General regarding amendments to the model defamation provisions, include:
- a single publication rule;
- a serious harm threshold, which must be established by plaintiff;
- a definition of an "employee";
- a requirement to issue a Concerns Notice;
- a public interest defence, and a defence applying to peer-reviewed statements/assessments in a scientific or academic journal; and
- greater clarification around the cap on damages for non-economic loss.
A single publication rule
At general law, each publication of a defamatory matter is a separate cause of action and for internet publications, ordinarily occurs when a third party downloads a webpage rather than when it is posted online by the publisher. Given webpages can be downloaded long after their first publication date, by anyone, plaintiffs are able to essentially circumvent the general 1-year limitation period by relying on later downloads of the same material:
The introduction of the single publication rule addresses this issue in the following manner:
- the start date of the 1-year limitation period for each publication runs from the date of the first publication; and
- for an electronic publication, the first publication occurs when it is uploaded for access or sent to the recipient (rather than when it is downloaded or received).
Serious Harm Threshold
The Bill proposes to amend the Act so that a publication will not be considered defamatory unless a plaintiff can prove that its publication has or is likely to cause serious harm to a plaintiff's reputation. The onus is on the plaintiff to establish that serious harm has occurred, and where the plaintiff is an exempt corporation, they must establish that serious financial loss has been or is likely to be caused to the plaintiffs business.
In some cases, a judge or judicial officer will have the authority to determine whether the party has met the threshold for serious harm early on in the proceedings, before allowing the matter to proceed to a trial. This will enable minor claims to be dealt with at an early stage.
A definition of an "employee"
In general terms, a corporation cannot bring an action for defamation unless it has charitable objects or fewer than 10 employees.
Until now, there has been no statutory definition of what classified as an employee. For example, it was unclear whether individual contractors could qualify.
The new definition inserted into section 9(6) of the Act means that an employee includes any individual (whether or not a contractor) who is engaged in the day to day operations, other than as a volunteer, and is subject to the control and direction of the corporation.
This confirms that individual contractors could now be part of those numbered as employees of a corporation, for the purpose of the exclusionary headcount.
A requirement to issue a Concerns Notice
The Bill proposes to make it a requirement that the defamed party first issue the publisher with a Concerns Notice prior to filing proceedings (Leave can be sought for non-compliance in limited circumstances).
The reforms proposed by what would be the new section 12A of the Act identify that a Concerns Notice must:
- be in writing;
- specify the location of the defamatory publication - ie, where it can be accessed, such as a web page address;
- inform the publisher of :
- the defamatory imputations that are alleged to arise from the offending publication; and
- the serious harm or serious financial loss that the publication is alleged to have caused or is likely to cause;
- (if practicable) provide the publisher with a copy of the matter in question;
- provide the publisher with 28 days in which to provide an offer to make amends.
A document that is required to be filed or lodged to commence defamation proceedings cannot be used as a de-facto Concerns Notice.
Introduction of new defences – Public Interest Defence & Scientific or Academic peer review
Defences of "Public Interest" and "Scientific or Academic Peer Review" are also proposed by the Bill.
The public Interest defence aims to protect journalists and media organisations in circumstances where they are publishing, or reporting upon, matters that are of public concern or interest, by removing the threat of proceedings. In order for the defence to apply, the relevant defendant must prove that:
- the statement complained of was, or formed part of, a statement on a matter of public interest; and
- they reasonably believed that publishing the statement was in the public interest.
In the event that a defendant is able to satisfy those criteria, the Court must then consider all the circumstances of the case, which may include (without limiting the matters that the court may take into account):
- the seriousness of any defamatory imputation carried by the matter published;
- the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
- the extent to which the matter published relates to the performance of the public functions or activities of the person;
- whether it was in the public interest in the circumstances for the matter to be published expeditiously;
- the sources of the information in the matter published, including the integrity of the sources;
- if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);
- whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
- any other steps taken to verify the information in the matter published; and
- the importance of freedom of expression in the discussion of issues of public interest.
The defence in respect of peer-reviewed matters published in academic or scientific journals will apply in instances where a scientific or academic issue has been subject to independent review of scientific or academic merit.
The defence (which is comparable to section 6 of the Defamation Act 2013 (UK)), recognises that it is in the public interest for academics and scientists to be able to express their views freely, particularly if they have been subject to peer review. The defence can be defeated if and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.
A cap on damages for non-economic loss
While the Act includes a monetary ceiling for non-economic loss (the "maximum sum" is currently $421,000), it also allows for the Court to award a greater amount where satisfied that the circumstances of the publication warrant doing so. This has led to significant awards in recent high-profile cases involving celebrities.
The Bill seeks to amend the Act in order to confirm that the legislated maximum sum represents the sets the upper limit on a scale or range of damages and it applies regardless of whether aggravated damages apply. The Bill reinforces that the upper limits of non-economic loss are to be awarded "only in a most serious case". This does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances. Accordingly, the Bill confirms that any award of aggravated damages is to be made separately to awards of damages for non-economic loss to ensure the scale or range for damages continues to apply for non-economic loss, even where aggravated damages are awarded.
Key takeaways
There is no doubt that freedom of expression is very important, and people should be free to discuss matters importantly, without fear of litigation. However, people also must be able to protect their reputation where it is being besmirched. The proposed reforms aim to strike a balance through the imposition of further requirements on plaintiffs, and the introduction of new public interest defences.
Although it is inevitable that the imposition of a serious harm or serious financial loss burden will mean it is more difficult for certain plaintiffs to bring a defamation claim, it may also encourage greater pause before publication in that the risk of serious harm will likewise need to be considered by publishers.
Additionally, the one-year limitation period in the context of the single publication rule may also mean that potential plaintiffs look to take steps much faster upon becoming aware of a publication.
As always, it is wise and economically sound to obtain legal advice from an experienced defamation lawyer prior to making any publication that risks tarnishing a person's reputation because the cost of checking can pay dividends in avoiding wasted costs in addressing concerns notices and/or litigation.