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New Defamation Laws AUSTRALIAN Press Council Vol. 18, No. 1. February 2006 ISSN 1033-470X New Defamation Laws: A Guide What does the new uniform defamation legislation mean for publishers, editors and journalists? Press Council Policy Officer, INEZ RYAN, offers some guidance. he Australian Press Council was general agreement that the SCAG draft outside of the courts. The intention of the is pleased to report that its was preferable, and the final draft was sent offer of amends procedure is to provide concerted efforts over the to the states and territories to be passed into both plaintiffs and defendants with an years to achieve a uniform legislation. This model Defamation Act has incentive to resolve a defamation dispute defamation law have borne now become law. The only state which did at an early stage, without resorting to Tfruit. A Defamation Act 2005 was passed not adopt fully the model law was Tasmania, litigation. in each of the states and is operational from which retained the right of action on behalf 1 January 2006. The territories have of the dead. The Australian Capital Territory In order to be able to claim a defence indicated their intention to pass the and the Northern Territory were to follow under this section, an offer of amends legislation in the next few months. As a suit by adopting the model Defamation Act must be in writing and must include an result, the federal government has pulled later in 2006. offer to publish a correction. The offer of back from its threat to introduce a national The new Defamation Act in effect adopted amends may include an offer to publish an defamation law. the common law approach to most matters apology, an offer to pay compensation, or There had been a number of attempts at in defamation and clarified that where juries particulars of any corrections or apologies establishing uniform defamation law in were used the jury would determine whether already made prior to the date of offer. the 1980s and 1990s. In 2001 the Press the publication was defamatory and whether Any apology made by the publisher does Council initiated action to reform defences succeeded, and judges would not constitute an admission of liability. determine damages, if any. The reforms are defamation law, particularly aimed at the If a publisher’s offer is accepted and the development of uniform law in the various intended to harmonise laws across Australia, publisher carries out the terms of the offer, state and territory jurisdictions. At the but will also bring a number of significant a plaintiff cannot continue or enforce an time that the Council took up the matter, benefits for editors and publishers as well as the issue had been removed from the agenda plaintiffs. These benefits include the action for defamation, although the of the Standing Committee of Attorneys- introduction of an offer of amends system publisher may be ordered to reimburse the General (SCAG). This initiative first led to together with a new defence based on it; the plaintiff for any expenses incurred as a the changes to NSW defamation law and, extension of the truth alone defence to all result of accepting the offer. with the assistance of the then federal AG, jurisdictions; the removal of the infamous If a publisher makes a reasonable offer to Daryl Williams, the issue was put back on “7A” hearings and the return to a single trial make amends and the offer is not accepted the SCAG agenda. regardless of the number of imputations; the publisher can use such refusal as a caps on damages; and a clarification of the The NSW Attorney-General persuaded his defence to an action for defamation. In requirements of qualified privilege. colleagues to develop a draft uniform Act. determining whether the offer was Around the same time, Daryl Williams’ The Council has developed this practical reasonable a court is required to take into successor, Phillip Ruddock, drafted a guide for editors and readers who want to account any correction or apology which putative national law, which would replace know what is different in defamation has been published and the prominence the state laws if the states could not agree legislation as a result of these changes. This given to such correction, and the length of on uniformity. There were a number of is not intended as legal advice and, in any time between the publication of the areas of disagreement between the doubt as to their rights and obligations, Commonwealth and the states, on issues readers and editors are advised to still consult defamatory material and the publication including whether corporations could sue, with legal advisers. of the correction or apology. The court whether juries would be involved and may also consider whether the offer was whether truth alone would be a defence. rejected because of a disagreement With input from interested parties, Resolution of disputes without between the plaintiff and the publisher as including the Press Council and litigation to the imputations carried by the published representatives of the major publishers Perhaps the most significant reform material (i.e. where the parties disagree as and broadcasters, both the state and federal introduced in the uniform legislation is the to the meaning or interpretation of the proposals were developed further. There procedure for resolving defamation disputes words published). 2 Australian Press Council News, February 2006 Restrictions on bringing an action for defamation other imputations that are substantially true and the damage to The uniform legislation places some restrictions on who may reputation caused by the untrue imputations is no greater than that commence an action and the circumstances in which such action which is caused by the true imputations. An example given by the may be commenced. Corporations who been defamed cannot court is where an article has accurately stated that an individual bring action unless they are “excluded”, i.e. a corporation can was a murderer, but the article incorrectly states that the individual only bring action for defamation if it is a non-profit organisation has been charged with murder. If the plaintiff then pleaded that the or if it has fewer than ten employees. This restriction should imputation that he had been charged with murder was defamatory, prevent actions similar to the infamous “McLibel” case. the defence of contextual truth might be relied upon. The notion of “contextual truth” can be difficult to grasp but, as far as It should be noted, however, that although the corporation itself editorial policy is concerned, it is best to ensure that any statement cannot be a plaintiff in a defamation action, an individual associated that is likely to damage a person’s reputation is substantially true. with a corporation may bring an action. If an individual is perceived by the community as being the same as the corporation, There are two components to the defence of qualified privilege as for example, the defamation of the corporation may result in formulated in the uniform legislation. The defendant must believe damage to the reputation of the individual, which could result in on reasonable grounds that the recipient has an interest in the litigation. information published and the defendant’s conduct in publishing the material must have been reasonable. The following issues are An action for defamation must be commenced within one year listed as being appropriate to be taken into account by the court from the date of publication. However, it should be noted that this when deciding whether the publisher’s conduct has been period may be extended to three years if the court is satisfied that reasonable: it was not reasonable in the circumstances for action to have been commenced within one year. • The level of public interest in the published material • The extent to which the published material relates to the Section 10 of the uniform legislation prevents an action from performance of the public functions or activities of the person being brought with respect to the defamation of a deceased who has been defamed. person. An exception to this is those actions brought in Tasmania, • The seriousness of any defamatory imputation which has omitted this section from its legislation. However, this • The extent to which the published material distinguishes omission should not result in forum shopping on behalf of between suspicions, allegations and proven facts. deceased estates, since the court is required to apply the law which • Whether, in the circumstances, it was in the public interest for applies in the state in which the harm caused has its closest the material to be published expeditiously connection. • The nature of the “business environment” in which the publisher operates • The sources of the information in the published material and Defences the integrity of those sources The uniform legislation removes the requirement to establish • Whether the plaintiff’s side of the story has been included in the public benefit in order to establish a defence based on truth. This published material and whether a reasonable attempt was change extends to all jurisdictions the defence previously only made by the publisher to obtain the plaintiff’s response available in Victoria. • Whether the publisher has taken any other steps to verify the information published Where untrue imputations are published they may fall within the • Any circumstances which are considered relevant by the court defence of contextual truth if they are published together with • Any evidence of malice on the part of the publisher that will defeat the defence of qualified privilege. INSIDE THIS ISSUE At common law a defamation action can be defended as fair comment on the grounds that the published material was an • New defamation lasw: a guide 1 expression of opinion as distinct from a statement of fact.
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