Defamation

The Australian Council of Attorneys-General has approved Model Defamation Amendment Provisions following the Stage 1 consultation exercise last year to which I was a contributor.

The A-G's also agreed that all jurisdictions will enact and commence the amendments as soon as possible.

In essence the amendments privilege 'big media'. Priorities in the Australian justice system are illustrated by the Council's agreement to fast track changes to the defamation regime but defer any action regarding calls to raise the age of criminal liability from 10 and thence not imprison children.

The key changes to the regime include:

• introducing a serious harm threshold and requiring that if raised by a party, it is generally to be determined by the judicial officer as soon as practicable before the trial 
•  clarifying which corporations may have a cause of action 
•  making it mandatory to issue a concerns notice before proceedings can be commenced and clarifying the form, content and timing for concerns notices and offers to make amends 
• clarifying that a defendant may plead back imputations relied on by the plaintiff to establish the defence of contextual truth 
•  introducing a new defence for the publication of defamatory matter concerning an issue of public interest 
•  introducing a new defence for peer reviewed matters published in academic or scientific journals 
•  clarifying the operation of the defence of honest opinion 
•  clarifying that the cap on damages for non-economic loss sets the upper limit of a scale, and that aggravated damages are to be awarded separately 
•  requiring plaintiffs to seek leave from the court to commence proceedings against associated defendants for claims relating to the same matter 
•  providing that an election to trial by jury can be revoked only with the consent of all the parties or with the leave of the court on the application of a party 
•  giving the court discretion to determine costs if a party dies after proceedings have commenced, if it is in the interests of justice to do so 
•  introducing a single publication rule to provide that the applicable one-year limitation period runs from the date of first publication. For electronic publications, this is the date the material is first uploaded to the internet for access or sent electronically to a recipient 
•  providing for the limitation period to be extended to enable pre-trial processes to be concluded and to provide courts with greater flexibility to extend it 
•  allowing for service by email where an email address is specified by the recipient for the giving or service of documents 

The Stage 2 reforms  will focus on the responsibilities and liability of digital platforms for defamatory content published online, with a Stage 2 discussion paper for public consultation.