Defamation law reform – protecting the public interest and a new requirement of 'serious harm'
Whether you have been defamed, or are being accused of defamatory conduct, things in NSW just changed in ways that could affect your case.
New South Wales has recently paved the way for reform in Australia, assenting to the Defamation Amendment Act 2020 (NSW) on 11 August 2020, which provides an overhaul of the Defamation Act 2005 (NSW), legislation enacted as part of a 'uniform approach' implemented throughout Australia's states and territories in November 2004.
The most notable changes include the insertion of a number of new defences, the introduction of a new threshold element which plaintiffs are required to establish in order to bring a defamation case, and confirmation of the damages available to successful plaintiffs.
When bringing a defamation claim, a plaintiff will now have to pass the 'serious harm' threshold. The new section 10A requires a plaintiff to prove that the publication of the defamatory material has caused, or is likely to cause, serious harm to the plaintiff’s reputation. Where the plaintiff is an excluded corporation, it must also show that the publication has caused, or is likely to cause, serious financial loss.
This section 10A threshold (which can be determined by a court prior to a trial commencing) will effectively allow the court to turn away plaintiffs if the court is not satisfied that any 'serious harm' has actually been suffered, thereby effectively reducing the numbers of trivial matters being taken to court, which have skyrocketed in this age of social and digital media.
Those intent on bringing a defamation claim must first provide a 'concerns notice' to the purported publisher of defamatory material before commencing proceedings, pursuant to a new section 12B.
The defence of public interest, the new section 29A, will be available to a defendant who can prove that:
the publication of defamatory material concerns an issue of public interest; and
the defendant reasonably believed publication of that material was in the public interest.
The section set outs matters to be considered by the Court, including the seriousness of the defamatory imputations, whether the material distinguishes between suspicions, allegations and proven facts, and the importance of freedom of expression in the discussion of issues of public interest.
Other reforms include that the maximum amount of damages to be awarded for non-economic loss may only be given in the most serious of cases, and that an award for aggravated damages must be made separately.
If you or your client needs assistance navigating the new landscape that is defamation law in NSW or would like more detailed information on the full range of reforms, contact our litigation team.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.
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