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Following the high profile defamation cases of Rebel Wilson and Geoffrey Rush, where they received high amounts of compensation, there has been increasing pressure to amend defamation laws in favour of publishers and journalists. In 2020, the Government introduced reforms to the Defamation Act 2005, which should come into effect sometime in 2021.

The most significant changes include the introduction of a serious harm threshold, which means that the elements of establishing a defamation claim now include that the:

  • communication has been published or communicated to a third party; and
  • communication clearly identifies or is about the person being defamed;
  • communication is defamatory or harms the reputation of the person; and 
  • publication of defamatory matter has caused or is likely to cause, serious harm to the reputation of the person. 

This article will detail some of the reforms to the Defamation Act and what it means for a future defamation claim. 

Introduction of a Serious Harm Threshold

In light of the recent reforms, a person making a defamation claim must prove that the defamatory material’s publication has caused, or is likely to cause, serious harm to their reputation. If a publication or fake review defames a business, they must prove that the publication has caused serious harm to their business’s reputation. They also need to prove that it has caused, or is likely to cause, serious financial loss to their business.

Those bringing the claim must establish the serious harm early on. A judge or judicial officer has the authority to determine whether the party has met the threshold of serious harm before the trial commences.

Definition of an Employee Changed

The recent reforms include a clearer definition of who is an “employee”. A corporation with fewer than 10 employees is able to bring a claim against a person for defamation.

However, there was no definition of what classified as an employee. It was not clear whether individual contractors could come under the definition.

The new definition of an employee includes any individual involved in the day to day operations, other than as a volunteer, and is subject to the control of the corporation. This means that individual contractors could now be part of the number of employees of a corporation.

Concerns Notice Requirement

With the new amendments, it is now a requirement that the defamed party issue the publisher with a concerns notice. Sending a concerns notice to the publisher is an important step in attempting to resolve the matter prior to commencing proceedings. It should clearly set out the defamatory content and how it has caused you serious harm. It should also include an offer to make amends, such as the publisher issuing a public apology or compensating you for the financial loss they caused.

 The reforms to the Defamation Act outline that a concerns notice must include the:

  • defamatory imputations;
  • location of the defamatory publication;
  • serious harm or serious financial loss that the publication caused or is likely to cause; and
  • offer to make amends with at least 28 days to comply. 

Introduction of a Single Publication Rule

There is a limited period of time in which you can make a claim of defamation. The period of time is one year since the publishing of defamatory material. In relation to online publications, the one year period starts every time someone downloads an online publication, not one year since the original publication.

In order to clarify this, the law has changed so that the one year period commences on the day that the publisher uploads it for access or sends it electronically. This is rather than when the a party downloads or receives the publication.

Clarification of the Cap on Non-Economic Damages

The recent controversial cases of Rebel Wilson and Geoffrey Rush were not just related to their celebrity status. There was also high publicity due to the excessive amount of damages for the non-economic loss they receieved. Damages for non-economic loss aim to provide compensation for intangible matters. This includes hurt feelings or damages to their reputation.

Previously, a court was able to award an amount larger than the maximum amount if they found that the circumstances surrounding the publication warranted aggravated damages.

The new laws have clarified that the amount that can be awarded in damages for non-economic loss is a scale. Courts should only give damages on the higher end of the scale in the most serious case. 

Introduction of a New Public Interest Defence

In replacement of the qualified privilege defence against defamation, the new laws establish a public interest defence. This aims to assist journalists and media organisations in publishing matters that are of public concern or interest, without the threat of defamation proceedings. The new laws outline the factors that will be taken into consideration when determining this defence, including:

  1. the seriousness of the imputations carried by the matter published;
  2. the extent to which the publication distinguishes between allegations, suspicions and proven facts;
  3. the extent to which the publication relates to the performance of the persons public functions or activities;
  4. whether it was in the public interest for the matter to be published quickly;
  5. the sources relied on and the integrity of the sources. If the source is anonymous, whether there is a good reason for that;
  6. whether the matter published contained the substance of the person’s side of the story in the publication. Or, whether there were reasonable attempts to publish a response from the person;
  7. any other steps are taken to verify the information in the publication; and
  8. the importance of freedom of expression in the discussion of matters in the public interest. 

Key Takeaways

The new reforms to defamation make it harder to make a claim as you must now establish that you have suffered serious harm or serious financial loss, due to the defamatory publication. Defamation is a very complex area of law and can be very costly to pursue. Before you plan to make a claim against someone for defamation, consider whether there is some way to ask the person to remove the defamatory material first. After exhausting all these avenues, you may want to consider making a defamation claim. If you have concerns about any communication that could be defamatory, get in touch with LegalVision’s disputes resolution lawyers on 1300 544 755 or fill out the form on this page.

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