DEFAMATION LAW CHANGES

Changes to defamation law commenced for several States and Territories on and from 1 July 2021

Defamation legislation has been changed in the Australian Capital Territory, New South Wales, Queensland, South Australia, and Victoria.
The changes in these States and Territory take effect on and from 1 July 2021 for publications published on and from 1 July 2021. For publications published before 1 July 2021, the defamation legislation in place before the changes will apply.
Tasmania has just finalised consultation on the changes and it is anticipated that the proposed legislative amendments will soon be considered by the Tasmanian Parliament. There is no indication of when Western Australia and the Northern Territory will introduce an amendment bill to their respective parliaments to consider.
If you have any questions on whether the changes apply to a particular publication, or if amendments have commenced in Tasmania, Western Australia, or the Northern Territory, please contact Industry Legal Group.

Who may make a defamation claim?
The law of defamation is available only for natural persons, corporations with less than 10 employees that are not an associated entity of another corporation, and not-for-profit entities.

What are the changes?
The key changes include:
• a fourth element must be met, being that serious harm is caused to the complainant (see below under ‘What are the elements to prove defamation’, for details of serious harm);
• legal proceedings may not be commenced until a concerns notice, setting particular information, such as the defamatory imputations and the serious harm caused, is first provided to the publisher of the alleged defamatory publication;
• changes in relation to available defences, including the deletion of the defence of triviality;
• the single publication rule, meaning that where the defamatory meaning is the same for several publications, the one-year limitation period commences running from the date of first publication;
• the one-year limitation period may be extended up to 56 days where a concerns notice is issued within 56 days of the end of the limitation period; and
• a limitation is placed on the maximum amount of damages for non-economic loss.

What are the elements to prove defamation?
A publication is defamatory if each of the following are established:

  1. the publication has a defamatory meaning;
  2. the person making the claim is identified as the object of the defamatory meaning;
  3. the publication is published for a third party; and
  4. the publication has caused serious harm, being:
    (a) for a person, the publication has caused, or is likely to cause, serious harm to the reputation of the person; or
    (b) for a corporation, the publication has caused, or is likely to cause, the corporation serious financial loss.
    A publication may carry a defamatory meaning if for example, in the mind of an ordinary reasonable person (as a general community standard), it injures reputation through, ‘disparaging’ the person, causing others to ‘shun or avoid’ the person, or causing the person to be subject to ‘hatred, contempt or ridicule.’

How long do I have to make a claim?
The limitation period for a defamation action runs for one year commencing from the date the publisher, or an associate of the publisher, first publishes the defamatory publication (however, where applicable, the limitation period may be extended by up to 56 days if a concerns notice is given before the limitation period expires or the court grants an extension). The date of publication is the date the publication is uploaded or sent to the recipient.

Takeaways
The key takeaways are:
• there are changes to the defamation legislation commencing on and from 1 July 2021 for the Australian Capital Territory, New South Wales, Queensland, South Australia, and Victoria; and
• changes to the defamation legislation for the Northern Territory, Tasmania and Western Australian have not yet commenced.

This document is intended for general information purposes only and should not be regarded as legal advice. Please contact Industry Legal Group if you require legal advice

AAAA Member Benefits
Industry Legal Group provides advice to members on commercial law matters.
If you have any questions relating to the above information, please contact Industry Legal Group on 1300 369 703 or aaaa@industrylegalgroup.com.au