Defamation law for the digital age

Discussion Paper

The Council of Attorneys-General (‘COAG’) have issued a Discussion Paper for the Review of the Model Defamation Provisions.  They have invited submissions on the questions set out in the Discussion Paper and any related matters by 30 April 2019. 

The NSW Department of Justice had previously completed a statutory review of The Defamation Act 2005 (NSW) (‘the Act’) which was tabled in the NSW Parliament on 7 June 2018 and referred to COAG.  The Review concluded that the Act would benefit from amendment and modernisation. 

Reasons for Reform

At the time of the introduction of the Act in New South Wales on 1 January 2006, it was contemplated there was a need for ongoing review and reform of the Act which was scheduled to take place 5 years after the Act commenced.  Unfortunately, that review was not completed in 2011 when certain deficiencies were apparent and could have been corrected.  There is now a greater sense of urgency to reform those particular deficiencies and to modernise the Act. 

The Discussion Paper raises a number of technical refinements to the Act, given deficiencies and ambiguities identified through the operation of the Act in practice. 

There are also improvements that could be made to the Act, consistent with what is described by some as ‘international best practice’, by adopting provisions from the UK Defamation Act 2013.

The most significant change since the Act came into force however is the enormous impact social media has had on the world of publication.  Everyone on social media has become a publisher and everyone has the power through social media to disseminate news, information and comment.  It is a world where free speech may truly exist.  It enables the free flow of communication anytime, anywhere, by anyone.  Paradoxically, that freedom is frequently abused, scandalised and manipulated for malicious purposes.

It is in this wider context that the discussion of defamation law reform needs to take place, in addition to the technical deficiencies and improvements mooted.

The Questions

The Discussion Paper sets out 18 questions for discussion.  Question 1 is whether the policy objectives of The Model Defamation Provisions contained in Section 3 of the Act below remain valid:

(a) to enact provisions to promote uniform laws of defamation in Australia;

(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance;

(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and

(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.’

The remaining questions for discussion are grouped under the relevant parts of the Act:

    1. General Principles (Part 2 of the Act)

(Question 2) - Corporations – Should the Act be amended to broaden or to narrow the right of corporations to sue for defamation? 

(Question 3) - The ‘Single Publication’ rule – Should the Act be amended to include a ‘single publication rule’, and if so,

  • should the time limit that operates in relation to the first publication of the matter be the same as the limitation period for all defamation claims
  • should the rule apply to online publications only
  • should the rule operate only in relation to the same publisher, similar to Section 8 (Single Publication Rule) of the Defamation Act 2013 (UK)?

    2. Resolution of Civil Disputes Without Litigation (Part 3 of the Act)

(Question 4) - Offers to Make Amends

  • Should the Act be amended to clarify how sections 14 (when offers to make amends may be made) and 18 (effect of failure to accept reasonable offer to make amends) interact, and particularly, how the requirement that an offer be made ‘as soon as practicable’ under Section 18 should be applied?
  • Should the Act be amended to clarify Section 18(1)(b) and how long an offer of amends remains open in order for it to be relied upon as a defence, and if so, how?
  • Should the Act be amended to clarify that the withdrawal of an offer to make amends by the offeror is not the only way to terminate an offer to make amends, that it may also be terminated by being rejected by the plaintiff, either expressly or impliedly (for example, by making a counter offer or commencing proceedings), and that this does not deny a defendant a defence under Section 18?

(Question 5) – Should a jury be required to return a verdict on all other matters before determining whether an offer to make amends defence is established, having regard to issues of fairness and trial efficiency?

(Question 6) – Should amendments be made to the offer to make amends provisions in the Act to:

  • require that a Concerns Notice specify where the matter in question was published
  • clarify that Section 15(1)(d) (an offer to make amends must include an offer to publish a reasonable correction) does not require an apology
  • provide for indemnity costs to be awarded in a defendant’s favour where the plaintiff has used proceedings before the expiration of any period of time in which an offer to make amends may be made, in the event the court subsequently finds that an offer of amends made to the plaintiff after proceedings were commenced was reasonable.

    3. Role of Judicial Officers and Juries in Defamation Proceedings (Section 22 of the Act)

(Question 7) – Should section 21 (election for defamation proceedings to be tried by jury) be amended to clarify that the court may dispense with a jury on application by the opposing party, or on its own motion, where the court considers that to do so would be in the interests of justice (which may include case management considerations)?

(Question 8) – Should the Federal Court of Australia Act 1976 (Commonwealth) be amended to provide for jury trials in the Federal Court in defamation actions unless that court dispenses with a jury for the reasons set out in Section 21(3) of the Act – (depending on the answer to Question 7) – on an application by the opposing party or on its own motion?

    4. Defences (Part 4, Division 2 of the Act)

(Question 9) - Defence of Contextual Truth – Should Section 26 of the Act (defence of contextual truth) be amended to be closer to Section 16 (defence of contextual truth)  of the (now repealed) Defamation Act 1974 (NSW) to ensure the section applies as intended?

(Question 10) - Defences for Publication of Public Documents and Fair Summaries -

  • Should the Act be amended to provide greater protection to peer reviewed statements published in an academic or scientific journal, and fair reports of proceedings at a press conference, and if so,
  • what is the preferred approach to amendments to achieve this aim – for example, should provisions similar to those in the Defamation Act 2013 (UK) be adopted?

(Question 11) - Defence of Qualified Privilege

  • Should the ‘reasonableness test’ in Section 30 of the Act (defence of qualified privilege for provision of certain information) be amended?
  • Should the existing threshold to establish the defence be lowered?
  • Should the UK approach to the defence be adopted in Australia?
  • Should the defence clarify, in proceedings where a jury has been empanelled, what if any aspects of the defence of statutory qualified privilege are to be determined by the jury?

(Question 12/Question 13) - Defence of Honest Opinion

  • Should the defence be amended in relation to contextual material relating to the proper basis of the opinion, in particular to better articulate if and how that defence applies to digital publications?
  • Should Section 31(4) of the Act (employer’s defence of honest opinion) be amended to reduce potential for journalist employees to be sued personally or jointly with their employers?

(Question 14) - Defence of Triviality

  • Should a ‘serious harm’ or other threshold be introduced into the Act, similar to Section 1 (serious harm) of the Defamation Act 2013 (UK) and if so,
  • should proportionality and other case management considerations be incorporated into the serious harm test?
  • Should the defence of triviality be retained or abolished, if a serious harm test is introduced?

(Question 15) - Defence of Innocent Dissemination

  • Should the innocent dissemination defence in Section 32 be amended to better reflect the operation of Internet Service Providers, Internet Content Hosts, social media, search engines, and other digital content aggregators as publishers?
  • Are existing protections for digital publishers sufficient?
  • Would a sufficient ‘safe harbour’ provision be beneficial and consistent with the overall objects of the Act?
  • Are clear ‘takedown’ procedures for digital publishers necessary and if so, how should any such provisions be expressed?

    5. Remedies (Part 4, Division 3 of the Act)

(Question 16) - Cap on Damages

  • Should Section 35 be amended to clarify whether it fixes the top end of a range of damages that may be awarded or whether it operates as a cut-off?
  • Should Section 35(2) be amended to clarify whether or not the cap for non-economic damages is applicable once the court is satisfied that aggravated damages are appropriate?

(Question 17) - Multiple proceedings and consolidation -

  • Should the interaction between Sections 35 (damages for non-economic loss limited) and 23 (leave required for further proceedings in relation to publication of the same defamatory matter) of the Act be clarified?
  • Is further legislative guidance required on the circumstances in which the consolidation of separate defamation proceedings will or will not be appropriate?
  • Should the statutory cap on damages contained in Section 35 of the Act apply to each cause of action rather than each ‘defamation proceedings’?

The final question (Question 18) is a catch all – are there any other issues relating to the defamation law that should be considered? 

Comment

The features of social media, with anonymity and publication to whomever and wherever in the world, raise issues of intense complexity for the law and particularly the law of defamation.  Both the frenzy to judge and find guilt, and the willingness to bully, threaten and abuse, challenge the rule of law itself, let alone undermine the ideals of freedom of speech.

In this context, the primary issue for discussion should be whether, and if so the extent to which, social media/digital platforms should be immune from action for defamation. 

Only a few years ago, it might have been easy to accept that these bodies, like telephone carriers, have little or no control over the information published on their platforms.  With more knowledge of how the mechanisms work, with the realisation that they distribute news and information at significant advantage over traditional media outlets, and with an understanding of the extent of personal information they collect, unwittingly volunteered by users, the reform of defamation legislation should confront the enormous power, control and oversight the Global Internet Companies wield.  An immunity would entrench that power. 

The following important issues may then be addressed with the regulation of future digital communication in mind:

  • Freedom of speech exercised without responsibility enables deliberately false and deceitful information to be disseminated. Should the presumption of falsity in favour of claimants remain and should damages be capped for defamatory conduct of this kind?
  • Defamatory accusations are often published responsibly, but without sufficient evidence to prove truth. As the public are entitled to expect the truth to be published about a person’s reputation, in cases of responsible but deficient evidence, should the law allow an exceptional defence for the publication on a subject of public importance in the ‘interests of the public’?
  • The public are also entitled to expect that private information about a person is not published or used to that person’s disadvantage. Should the law provide a meaningful restraint particularly on the information so easily distributed by social media?
  • Apologies and corrections are already part and parcel of the dispute resolution mechanisms in the Act, yet much of the antagonism in disputes is the monetary value of the defamation. Should there be a speedy non-monetary remedy that can be established, particularly for trivial cases, thereby displacing damages as the remedy up to a minimum monetary threshold, similar to personal injuries thresholds at a minimum percentage of the statutory cap?
  • It is a long established rule that the meaning of the publication is to be understood based on the ordinary reasonable person’s general impression, not by applying a lawyer’s interpretation, which is logical, precise and analytical. It comes as a surprise to litigants when this rule is turned on its head by the ‘imputations’ in the pleadings, skilfully crafted by specialist lawyers, asserting the meaning.  Pleading ‘imputations’ must be logical, precise and analytical.  They are a lawyer’s construct of language, not the general impression readers receive.  Should this process be changed to make defamation law as simple and affordable as possible?

 

Patrick George is the author of the leading text Defamation Law in Australia (3rd Edition).  This article was originally published in the NSW Law Society Journal.