On 26 February 2019 the Council of Attorneys General released a discussion paper on Australia’s defamation laws, part of the process of reforming the uniform national scheme.
Commissioned in June last year, the discussion paper raises 18 areas for possible reform, calling for public submissions by April 30, 2019.
The paper suggests that the reform agenda include the defences of contextual truth and qualified privileged, the introduction of a single publication rule and juries for the Federal Court.
In several of these areas, the paper suggests the UK’s Defamation Act 2013 as a model for reform.
The discussion paper is the first step towards amending the country’s defamation regime. As the NSW Attorney General Mark Speakman SC put it:
“NSW’s Defamation Act came into force before the social media explosion and so is in need of a digital makeover.”
Large sections of the discussion paper focus on the tensions between defamation law and internet communication. For example, the paper asks whether the innocent dissemination defence should:
“… better reflect the operation of internet service providers, internet content hosts, social media, search engines, and other digital content aggregators as publishers.”
It also invites submissions on whether ” ‘takedown’ procedures for digital publishers [are] necessary” and whether the laws should stipulate that publication occurs only once, rather than every time a communication is downloaded.
The paper draws attention to the single publication rule in the UK’s Defamation Act 2013, but asks whether, unlike that provision, an Australian single publication rule should only apply to online publications.
Beyond digital concerns, the paper addresses other long-running controversies around the defamation regime. For instance, it queries whether the amendments should broaden or narrow the right of corporations to sue for defamation.
It then discusses amending the Federal Court of Australia Act 1976 to provide for juries in Federal Court defamation trials and to ensure juries can only be dispensed by following the same procedure used by state courts.
The paper further requests submissions on whether the current contextual truth defence should be amended to be closer to its old form in the NSW Defamation Act 1974. The paper ponders whether allowing the defendant to plead back the same implications as pleaded by plaintiff, rather than only those not pleaded by the plaintiff, might “ensure the clause applies as intended”.
Qualified privilege is also discussed. The paper asks whether the defence should be amended to include a test of public interest, as in the UK’s Defamation Act 2013,and whether it should fall to the jury or judge to determine whether the defendant’s conduct was reasonable, a point which the cases currently treat with inconsistency.
Submissions are also invited on whether the defence of triviality should be replaced by a threshold of “serious harm”, similar to provisions in the UK’s Defamation Act 2013.
According to Speakman, attorneys general across Australia have signed off on the discussion paper:
“My counterparts from around the nation have agreed to the content of the discussion paper which will help inform submissions on defamation reform from media outlets, internet providers, social media platforms, lawyers and anyone interested in this important area of the law.”
After submissions close, a defamation working group appointed by the CAG and with representatives from each Australian jurisdiction will prepare proposals to be submitted to each Australian parliament.
According to a timetable released in January, there will be two rounds of consultation in 2019, and various legislatures will start enacting the amendments after June 2020.
NSW attorney general’s media release
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.