The Media and Communications Committee of the Law Council of Australia – the peak representative body of the Australian legal profession – has submitted a Response to the draft Defamation Bill Consultation.  The submission of the Committee – chaired by barrister Matthew Collins – focuses on the Antipodean experience with reforms similar to those being contemplated for England and Wales that have been tried and, in some cases, discarded.

In this post we will briefly summarise a few of the points made in the Response.

The Committee sees merit in the “substantial harm” test proposed by clause 1 of the Draft Bill.  It draws attention to the statutory defence of “triviality” in Australia which provides that

“It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unikely to suffer harm“

This focuses on the circumstances of publication and, the Committee suggests, could operate in addition to the substantial harm threshold.

In relation to the “responsible publication” defence in clause 2 of the Draft Bill, the Committee points out that a similar statutory defence in Australia – also based on the Reynolds case – has been interpreted by the Australian courts as laying down a “series of hurdles to be overcome”.

In an interesting observation on clause 3 – the abolition of the common law defence of justification – the Committee draws attention the risks of the courts becoming bogged down with “interlocutory disputation of the kind that plagued some Australian jurisdictions”

Drawing on experience of Australian litigation, the Committee expresses doubts about the “libel tourism” provision in clause 7 of the Draft Bill, suggesting that “intra European” position should apply to all foreign claims – so that a foreign claimant bringing a defamation in England against a foreign publisher could recover only for damage done in England and Wales.

In relation to the possible restrictions on the right of corporations to sue in defamation – included in the consultation although not in the draft Bill – the Committee draws attention to points arising out of the Australian experience.  First, it is said that the abolition of the right of most corporations to sue for defamation has had a liberalising effect on freedom of expression.  However, second, it is pointed out that the Australian provision gives rise to anomalies – as the ability of corporations to sue often depends on the answer to the complex question as to whether a corporation is “related to another corporation”.

Finally, the Committee mention the Australian cap on defamation damages of A$311,00 (about £205,000) – which had a deterrent effect on some claims but led, in some cases, to the issue of multiple proceedings.   We note, however, that as the effective cap on defamation damages in England and Wales is, in any event, £220,000, the imposition of a statutory cap at this kind of level would have little or no practical impact.

We commend the full paper to our readers and thank Dr Collins for providing us with a copy.