On 29 July 2020, the New South Wales Attorney-General Mark Speakman introduced the Defamation Amendment Bill 2020 (NSW) (“the Bill”) to the Legislative Assembly. The Bill seeks to amend the Defamation Act 2005 (NSW) (“the Act”) and the Limitation Act 1969 (NSW) in order to implement the first stage of reforms to Australia’s Model Defamation Provisions, as approved by the Council of Attorneys-General (“CAG”).
The Model Defamation Provisions were endorsed in 2005, and by mid-2006 were enacted in all states and territories as legislation. In January 2019, the states and territories committed to a review and overhaul of the defamation laws. In February 2019, the Review of Model Defamation Provisions Discussion Paper (“the Discussion Paper”) was released for public consultation. The Model Defamation Provisions and the Discussion Paper were discussed in an earlier TimeBase Article.
There were six main themes that emerged from stakeholder submissions for the discussion paper:
Following the Discussion Paper, the draft amendments to the Model Defamation Provisions was released for public comment in November 2019. On 27 July 2020, the CAG approved these amendments.
These amendments aims to improve the balance between the protection of individual reputations and freedom of expression, especially in matters of public interest, and are the first stage of reforms to be made to defamation laws. The CAG is scheduled to meet again later in the year in order to work towards the release of another discussion paper for the second stage of reform. The second stage of reforms will focus on the responsibilities and liabilities of digital platforms, regarding matters such as defamatory content published online.
One of the main amendments the Bill seeks to introduce is a serious-harm threshold. Under the current Act, all publications of defamatory matters are actionable, unless the defendant can prove that the plaintiff was unlikely to sustain any harm. However, this amendment will require serious-harm has been caused, or is likely to be caused, to a person’s reputation, in order to bring a cause of action for defamation.
The judicial officer will be the one to determine if the element is established. This determination can also be made prior to the trial, at either the judicial officer’s own motion or on the application of a party. If a party makes such an application, the judicial officer is to make the determination as soon as practicable, before the trial commences, unless they are satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding.
Other amendments proposed by the Bill include:
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Defamation Amendment Bill 2020 (NSW) and additional materials available from TimeBase's LawOne Service
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