In what, some observers believe, is somewhat of an over-reaction to a number of high profile court decisions in favour of celebrities (culminating in recent findings and substantial damages awards in Bauer v Wilson (No 2) and Rush v Nationwide News), the Council of the Attorneys General has confirmed amendments to the Defamation Act which in effect seek to make it more difficult, and less lucrative, for parties to pursue defamation actions, particularly against media outlets, particularly when those parties are, what might be ubiquitously referred to as, well known “personalities”.

The test of serious harm

Historically, it has been a central tenet of the law of defamation that once defamation was established, then loss was presumed, and a “victim” was not required to prove harm, reflecting the individual’s right to his or her reputation.

However, the amendments now require “serious harm” to be proved by a plaintiff, reflecting, as with many of the changes, equivalent UK legislation, influenced as it has been, by the considerable lobbying capabilities of the infamous British tabloid media.

As to what might constitute “serious harm” sufficient to pursue an award of damages, Lachaux v Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27 is a recent Supreme Court decision.

“The Court ruled that serious harm to reputation cannot be established solely by reference to the inherent tendency of words to cause harm to reputation. As a consequence, Plaintiffs are required to show through a combination of the inherent tendency of the words and their actual impact that serious harm has or is likely to be caused to the Plaintiff’s reputation.

“Section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. “

In his parliamentary speech, NSW Attorney-General Mark Speakman said the “serious harm” threshold would help filter out “trivial and vexatious” claims, including fights over low-level social media slurs. He said some minor claims “could be solved better over a coffee or a barbecue or even a handshake”.

The defence of publication of matter concerning an issue of public interest

With the proposed amendments to the legislation, it will be a defence to a claim of defamation on the basis of qualified privilege, if the matter is an “issue of public interest” – to be differentiated from a matter which might be “in the public interest”.

The distinction is important. Whilst it is not our view that the amendments would have necessarily changed the outcome, one might contemplate the use of this defence, for instance, in the Rebel Wilson dispute. Noting the subject matter related to what many might view as trivial matters regarding Ms Wilson’s candour in relation to her family history and age, few would argue that such a matter could not possibly rise to a disclosure “in the public interest”.

However, as a very successful and popular personality it could be imagined that such matters constitute an “issue of public interest” – notwithstanding the triviality of the subject material.

The amendments include a list of (non-exhaustive) factors which in the main are directed at “responsible reporting” (integrity of sources, whether publishers bothered to get the other side of the story) but are only intended to provide guidance, and there is no requirement that all or any of the factors be met for the defence to succeed.

Single publication rule for multiple publications

Pursuant to current legislation, electronic content is taken to be ‘published’ each time a person downloads the material. Of course, an article can be downloaded years after first publication – thereby effectively removing any limitation period.

The amendments provide that the publication of electronic material occurs when the material is first uploaded or sent to a recipient by its original publisher and for that publisher the limitation provisions run from that date.

Caps on damages for non-economic loss

Presently, for damages in defamation, matters are capped at $421,000 for non-economic loss. This cap was intended to ensure some consistency with awards of damages in other legal matters, including in personal injuries cases.

There is also provision in appropriate cases for awards of aggravated damages.

The amendments contemplate the maximum amount for non-economic loss is only to be awarded in the most serious cases and that if aggravated damages are to be awarded then any such award is required to be separate and distinct from awards specified for damages for non-economic loss.

Amendments to the defence of contextual truth

Suffice to say amendments to this somewhat conceptually complex deference, seek to address difficulties arising from the decision in the matter of Kermode v John Fairfax Publications, and so allowing defendants to rely on imputations complained of by a plaintiff.

Further Amendments

The amendments are the first of two stages of defamation law reforms. The Council of Attorneys-General has foreshadowed a second stage of reforms, which will focus on the responsibility and liability of digital platforms such as Google for online content, or comments pages on new websites with the expectation issues which have arisen the Voller decisions (Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102).

If you think you need some guidance or advice call us on 08 8231 6100 or email

http://reception@ezralegal.com.au.

We look forward to hearing from you soon.

Kind Regards,
Damian McGrath, Senior Counsel

Ezra Legal