Next Friday 29 November, Australia’s Attorneys-General have the opportunity to accelerate reform of Australia’s outdated defamation laws into the digital age.
Not before time. Our present regime was drafted in 2005, before Twitter and Instagram, when MySpace dwarfed Facebook. Yet according to the Centre for Media Transition, more than half of defamation actions from 2013 to 2017 related to digital cases.
When former NSW Court of Appeal judge David Ipp described Australia’s defamation laws as the “Galapagos Islands” of tort law, he was not paying them a compliment.
Our defamation laws have resisted change even as the landscape around them has evolved.
The result is that they are no longer fit-for-purpose. Reform is more than overdue. It is urgent.
Early this year, the Council of Attorneys-General (CAG) agreed on a timetable for reform that will enable updated defamation provisions to be ‘parliament-ready’ by mid-2020.
Yes, the timetable is ambitious, but with appropriate application of political will, it is also realistic.
NSW has led the drafting of proposals and has sought reforms that better reflect the media landscape we inhabit now.
A CAG Defamation Working Party (DWP) received 44 submissions from media interests, peak law bodies, law firms and concerned citizens, responding to a discussion paper released in February this year as well as a series of roundtables held in June.
CAG can agree reforms which would mean that Australia’s defamation laws would finally depart the Galapagos en-route for the digital age.
So, what changes are needed?
Social media platforms have enabled an explosion in defamation cases, many of them ‘backyard’ actions based on trivial comments. NSW courts are overrun with minor claims, so much so that Sydney is now regarded as the defamation capital of the world.
I want NSW to lead Australia’s legal system by many measures. This isn’t one of them. We need to require plaintiffs to show that they have suffered, or are likely to suffer, serious harm to their reputation due to publication of the alleged defamatory material, similar to section 1 of the UK Defamation Act.
I acknowledge that this reform would leave aggrieved parties who don’t reach the serious harm threshold without a remedy, apart from shaking hands and making up. But the costs of defamation claims often massively outstrip the damage caused by actions that could be solved better over a coffee or barbecue.
A prospective plaintiff should be required to provide a timely ‘concerns notice’, providing the publisher with particulars of the alleged defamation and the chance to remove materials and make an offer of amends. This would promote resolution of disputes outside the courtroom.
Defamation needs publication. This means that a key question for defamation is, ‘When was the matter published?’ That’s easy to determine for print, TV and radio. What about online materials?
Presently, the law deems that any download constitutes a publication, regardless of when the material was uploaded. Defendants are exposed to indefinite liability, restarting each time someone clicks on a link.
This ‘multiple publication rule’ should be consigned to history. Instead under a ‘single publication rule’, material would be taken to be published when it is first uploaded to the internet.
To protect public interest journalism, we also need a new public interest defence and clarification of the cap on damages.
Public interest journalism is integral to free society. We don’t want to protect publications that are reckless as to causing reputational harm, but we do want thought-provoking, professional investigative journalism to thrive.
We need a new defence like ‘responsible communication on a matter of public interest’, a provision in line with a recent New Zealand common law decision.
This chapter of reform will by no means be the last word. While the matters I have discussed above are longstanding and well understood, questions about the liability of digital platforms for defamatory material published online should proceed in a second stage.
The DWP should continue work on this vital element once the Commonwealth Government responds to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry Final Report.
These issues are new and untested. The other reform outlined above should proceed in advance of resolving questions about the responsibilities of digital platforms including social media, ISPs and search engines.
NSW has led this year-long national review of defamation law. We’ve consulted, we’ve crafted and we’ve captured a fine balance. I believe it’s the right balance. Next Friday, I’ll be asking my colleagues on the CAG to put the pedal to the metal.