New Defamation Laws: A Guide

What does the new uniform defamation legislation mean for publishers, editors and journalists? Press Council Policy Officer, INEZ RYAN, offers some guidance.

The Australian Press Council is pleased to report that its concerted efforts over the years to achieve a uniform defamation law have borne fruit. A Defamation Act 2005 was passed in each of the states and is operational from 1 January 2006. The territories have indicated their intention to pass the legislation in the next few months. As a result, the federal government has pulled back from its threat to introduce a national defamation law.

There had been a number of attempts at establishing uniform defamation law in the 1980s and 1990s. In 2001 the Press Council initiated action to reform defamation law, particularly aimed at the development of uniform law in the various state and territory jurisdictions. At the time that the Council took up the matter, the issue had been removed from the agenda of the Standing Committee of Attorneys-General (SCAG). This initiative first led to the changes to NSW defamation law and, with the assistance of the then federal AG, Daryl Williams, the issue was put back on the SCAG agenda.

The NSW Attorney-General persuaded his colleagues to develop a draft uniform Act. Around the same time, Daryl Williams' successor, Phillip Ruddock, drafted a putative national law, which would replace the state laws if the states could not agree on uniformity. There were a number of areas of disagreement between the Commonwealth and the states, on issues including whether corporations could sue, whether juries would be involved and whether truth alone would be a defence. With input from interested parties, including the Press Council and representatives of the major publishers and broadcasters, both the state and federal proposals were developed further. There was general agreement that the SCAG draft was preferable, and the final draft was sent to the states and territories to be passed into legislation. This model Defamation Act has now become law. The only state which did not adopt fully the model law was Tasmania, which retained the right of action on behalf of the dead. The Australian Capital Territory and the Northern Territory were to follow suit by adopting the model Defamation Act later in 2006.

The new Defamation Act in effect adopted the common law approach to most matters in defamation and clarified that where juries were used the jury would determine whether the publication was defamatory and whether defences succeeded, and judges would determine damages, if any. The reforms are intended to harmonise laws across Australia, but will also bring a number of significant benefits for editors and publishers as well as plaintiffs. These benefits include the introduction of an offer of amends system together with a new defence based on it; the extension of the truth alone defence to all jurisdictions; the removal of the infamous "7A" hearings and the return to a single trial regardless of the number of imputations; caps on damages; and a clarification of the requirements of qualified privilege.

The Council has developed this practical guide for editors and readers who want to know what is different in defamation legislation as a result of these changes. This is not intended as legal advice and, in any doubt as to their rights and obligations, readers and editors are advised to still consult with legal advisers.

Resolution of disputes without litigation

Perhaps the most significant reform introduced in the uniform legislation is the procedure for resolving defamation disputes outside of the courts. The intention of the offer of amends procedure is to provide both plaintiffs and defendants with an incentive to resolve a defamation dispute at an early stage, without resorting to litigation.

In order to be able to claim a defence under this section, an offer of amends must be in writing and must include an offer to publish a correction. The offer of amends may include an offer to publish an apology, an offer to pay compensation, or particulars of any corrections or apologies already made prior to the date of offer. Any apology made by the publisher does not constitute an admission of liability.

If a publisher's offer is accepted and the publisher carries out the terms of the offer, a plaintiff cannot continue or enforce an action for defamation, although the publisher may be ordered to reimburse the plaintiff for any expenses incurred as a result of accepting the offer.

If a publisher makes a reasonable offer to make amends and the offer is not accepted the publisher can use such refusal as a defence to an action for defamation. In determining whether the offer was reasonable a court is required to take into account any correction or apology which has been published and the prominence given to such correction, and the length of time between the publication of the defamatory material and the publication of the correction or apology. The court may also consider whether the offer was rejected because of a disagreement between the plaintiff and the publisher as to the imputations carried by the published material (i.e. where the parties disagree as to the meaning or interpretation of the words published).

Restrictions on bringing an action for defamation

The uniform legislation places some restrictions on who may commence an action and the circumstances in which such action may be commenced. Corporations who been defamed cannot bring action unless they are "excluded", i.e. a corporation can only bring action for defamation if it is a non-profit organisation or if it has fewer than ten employees. This restriction should prevent actions similar to the infamous "McLibel" case.

It should be noted, however, that although the corporation itself cannot be a plaintiff in a defamation action, an individual associated with a corporation may bring an action. If an individual is perceived by the community as being the same as the corporation, for example, the defamation of the corporation may result in damage to the reputation of the individual, which could result in litigation.

An action for defamation must be commenced within one year from the date of publication. However, it should be noted that this period may be extended to three years if the court is satisfied that it was not reasonable in the circumstances for action to have been commenced within one year.

Section 10 of the uniform legislation prevents an action from being brought with respect to the defamation of a deceased person. An exception to this is those actions brought in Tasmania, which has omitted this section from its legislation. However, this omission should not result in forum shopping on behalf of deceased estates, since the court is required to apply the law which applies in the state in which the harm caused has its closest connection.

Defences

The uniform legislation removes the requirement to establish public benefit in order to establish a defence based on truth. This change extends to all jurisdictions the defence previously only available in Victoria.

Where untrue imputations are published they may fall within the defence of contextual truth if they are published together with other imputations that are substantially true and the damage to reputation caused by the untrue imputations is no greater than that which is caused by the true imputations. An example given by the court is where an article has accurately stated that an individual was a murderer, but the article incorrectly states that the individual has been charged with murder. If the plaintiff then pleaded that the imputation that he had been charged with murder was defamatory, the defence of contextual truth might be relied upon. The notion of "contextual truth" can be difficult to grasp but, as far as editorial policy is concerned, it is best to ensure that any statement that is likely to damage a person's reputation is substantially true.

There are two components to the defence of qualified privilege as formulated in the uniform legislation. The defendant must believe on reasonable grounds that the recipient has an interest in the information published and the defendant's conduct in publishing the material must have been reasonable. The following issues are listed as being appropriate to be taken into account by the court when deciding whether the publisher's conduct has been reasonable:

• The level of public interest in the published material
   
• The extent to which the published material relates to the performance of the public functions or activities of the person who has been defamed.
   
• The seriousness of any defamatory imputation
   
• The extent to which the published material distinguishes between suspicions, allegations and proven facts.
   
• Whether, in the circumstances, it was in the public interest for the material to be published expeditiously
   
• The nature of the "business environment" in which the publisher operates
   
• The sources of the information in the published material and the integrity of those sources
   
• Whether the plaintiff's side of the story has been included in the published material and whether a reasonable attempt was made by the publisher to obtain the plaintiff's response
   
• Whether the publisher has taken any other steps to verify the information published
   
• Any evidence of malice on the part of the publisher that will defeat the defence of qualified privilege.

At common law a defamation action can be defended as fair comment on the grounds that the published material was an expression of opinion as distinct from a statement of fact. This defence has been incorporated into the uniform defamation laws. To qualify for this defence the published material must satisfy three criteria:

• the published material must have been an expression of opinion;
   
• the opinion must relate to a matter of public interest; and
   
• the opinion must be based on "proper material".

"Proper material" is defined as material that is substantially true; material that was privileged; or material that is a "fair report of proceedings of public concern" (i.e. a report of public proceedings of bodies such as courts and tribunals, parliaments, local government or certain international conferences). Although the legislation does not specifically state it, case law that has considered the defence of fair comment emphasises the importance of clearly distinguishing between fact and opinion. If an expression of opinion can be interpreted by the reader as being a statement of fact, the court may reject the fair comment defence.

Damages & Costs

Damages under the uniform legislation are limited to $250,000 for non-economic loss unless the court is satisfied that an award for aggravated damages is justified. Exemplary and punitive damages are excluded entirely. Damages for economic loss may also be awarded, but must be proportional to losses actually suffered by the plaintiff. The court may reduce the damages award if the defendant can provide evidence that they made attempts at mitigation. Publication of corrections, apologies or compensation settled between the parties at an early stage in the dispute would thus have the effect of reducing damages.

In order to encourage both plaintiffs and defendants to settle the proceedings at an early stage in the dispute, the uniform legislation requires the court to take into account the parties' conduct when awarding costs. A publisher who unreasonably fails to make or accept a settlement offer will be liable to pay indemnity costs. The amount that must be paid for indemnity costs will be significantly higher than a normal costs order. Similarly, a plaintiff who unreasonably fails to accept a settlement offer will be liable to indemnity costs.

Variations between jurisdictions

In spite of the primary aim of the legislation being to bring uniformity to defamation law across Australia, there remain some differences between jurisdictions. As noted above, Tasmania has elected not to adopt the clause that precludes actions on behalf of deceased persons in other states. The publication in Tasmania of material that results in injury to the reputation of a deceased person may result in litigation.

There are also variations in the way a defamation action is tried by the courts in different states. The uniform legislation includes two sections that deal with juries. Section 21 allows the parties to request trial by jury (although the court may refuse), while section 22 specifies that the amount of damages is to be determined by the judge. Both of these sections have been omitted from the South Australian legislation.

Publishers should also note that, at the time of publication, the ACT and the NT have not yet passed the uniform legislation.

Inez Ryan

see also
Index of website material on defamation.

Return to APC News 2006 Index

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