Tasmania's Defamation Bill

Friday 10 September 2021 @ 1.38 p.m. | Legal Research

On 2 September 2021, the Defamation Amendment Bill 2021 (Tas) ('the Bill') passed the Tasmanian House of Assembly. It was originally introduced to the lower house on 24 August by Minister for Justice Elise Archer ('the Minister').

The Bill proposes amendments that aim to being Tasmania's defamation laws in line with laws in other Australian jurisdictions.

The Minister summarised in her second reading speech that:

"the Bill introduces new provisions in the Defamation Act 2005 while clarifying and refining existing provisions to ensure that the Act operates to meet its original objectives in an environment that has seen the rise of digital platforms and online publications.

...Uniformity is particularly beneficial given that it is common for the same matter to be published in more than one Australian jurisdiction."

The Bill has yet to pass the upper house.

Actions For/Against a Deceased Person 

Under current Tasmanian defamation laws, the Administration and Probate Act 1935 (Tas) ('the 1953 Act') allows an action for defamation for or against a deceased person to survive beyond that person’s death. This goes against the common law position, which states that a defamation action cannot survive the death of one of the parties. 

In her second reading speech, the Minister explained that the reason for this common law position is that:

“as a person’s reputation is regarded as so personal an attribute, an action for defamation does not survive a death of a party for the benefit of the plaintiff’s estate”.

The Bill proposes to amend the 1953 Act. The effect of this amendments, as the Minister explains in her second reading speech, would provide that:

“… there [would be] no cause of action for defamation for, or against, deceased persons, whether or not the defamation occurred before or after the person’s death”.

Introduction of Serious Harm Element 

The Bill also proposes the introduction of section 10A into the Defamation Act 2005 (Tas), which would require a serious harm threshold to be met in an action for defamation.

The Minister comments in her second reading speech, that:

"The insertion of section 10A in the Defamation Act 2005 will place the onus on the plaintiff to establish that the publication of allegedly defamatory matter has caused, or is likely to cause, serious harm to their reputation.

...This important reform will operate to prevent trivial, minor, or insignificant defamation claims at the outset, reducing the cost and stress of unwarranted defamation litigation on businesses, individuals, and the courts. It may also encourage early resolution of claims, as it allows a party or a judicial officer to determine this threshold issue early in proceedings."

Should the Bill be assented, and in consequence of this threshold being introduced, the defence of triviality would also be repealed.

To further encourage early dispute resolution, the Bill proposes to make written concerns notices mandatory, so that parties are aware of the details of any complaint before legal proceedings are commenced. The Minister said that a notice such as this would give the publisher of the defamatory content enough information to make reasonable offers for demand.

Introduction of Single Publication Rule

Under current Tasmanian legislation, the one-year limitation period on defamation claims re-commences every time the publication is re-downloaded.

In response to the increasing rates of digital publications, the Bill proposes the introduction of a single publication rule. By introducing a single publication rule, the limitation period would commence from the time the material is first published only.

The Minister acknowledged in her second reading speech that the nature of publications on the internet is that a person may publish a statement, and then other people can:

“subsequently publish or upload that statement or a statement which is substantially the same... [this amendment would] ensure that the limitation period for defamation proceedings is consistent in its application to digital and non-digital publications”.

Further Proposed Amendments 

The Bill also proposes other amendments to ensure uniformity across Australian jurisdictions.

The Bill proposes the introduction of defences for public interest journalism and academic journalism. The Minister acknowledged that during consultations, there was criticism of the current defence of qualified privilege, noting that it does not apply generally to media publications.

The Bill proposes to insert a dedicated public interest defence. The Minister clarifies in her second reading speech, that this defence is specifically to:

“protect the ability of journalists and media organisations to publish on matters of public concern without fear of defamation litigation”.

The defence would apply where the material published was on a matter of public interest, and where the defendant had a reasonable belief about this public interest.

In relation to academic journalism, the Minister stated in her second reading speech that the law should reflect and recognise “the importance of academic and scientific dialogue in a free and open society”. Therefore, the Bill also proposes to insert a defence specific to:

“publication of a defamatory statement which relates to a scientific or academic issue and where an independent review of the statement’s merit has been undertaken by an editor or related expert”.

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Defamation Amendment Bill 2021 (Tas) and explanatory materials available from TimeBase's LawOne service

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