From 1 July, the defamation regimes in Victoria, NSW and South Australia are set to change (with other states likely to follow thereafter).
The changes are directed at better balancing the need to protect an individual’s reputation with ensuring freedom of expression and distribution of information which is clearly in the public interest. The changes include:
- a new public interest defence to defamation claims. This is to some extent modelled on UK law which is directed at protecting journalists with a reasonable belief that a matter should be published in the public interest.
- a single publication rule which will enable the limitation period for claims to run from the first publication of the alleged defamatory material. This means that each subsequent publication made by the original publisher won’t restart the 1-year limitation period on claims.
- a ‘serious harm’ threshold for defamation claims, making it harder to be successful where there is a lack of substantive evidence about readership of the impugned publication and the actual harm suffered.
- a requirement that a legal letter known as a ‘concerns notices’ be sent to the publisher before commencing defamation proceedings and that the notice contains prescribed information (including the imputations that the person will later rely on in their legal claim).
- introducing a new defence for peer reviewed material published in academic or scientific journals.
In addition the changes seek to address how damages are awarded for non-economic loss (like hurt feelings) with the maximum amount only to be awarded in the most serious cases. Whilst time will tell, this may see an overall reduction in the size of damages awards for defamation claims.
If you believe material published about you may be defamatory (or are concerned about a threatened defamation claim) it is now more important than ever that you obtain on-point, practical legal guidance at an early stage.