Australia’s defamation laws were originally introduced at a time in which social media giants such as Instagram and Twitter simply did not exist. Despite immense growth in the technology and social media landscape since 2005, the outdated acts have remained unchanged… Until now.
At long last, on 1 July 2021, changes to Defamation Law came into effect, with key amendments that will have a significant impact on the publication of information. The reform has been labelled a ‘National Reset’, as it has the intention of “[resetting] defamation law to strike a better balance between protecting individual reputations and freedom of expression, particularly regarding matters of public interest”.
Australia’s previous Defamation Laws
In 2005, Australia introduced the Model Defamation Provisions (MDPs), the first defamation laws in Australia. The Model Defamation Provisions are a template of sorts, which underpin each of the statutes comprising the uniform defamation laws.
The MDPs were prepared by the Australasian Parliamentary Counsel’s Committee and each State and Territory subsequently enacted legislation in 2005 to give effect to the MDPs.
Accompanying the MDP’s, the Model Defamation Law Working Party (DWP) was established to report to the Council on eventual proposals for amendments.
How did the 2021 changes come to be?
Considering the fact that the first iPhone was not released until 2007, 2 years after the introduction of Australia’s defamation laws in 2005, revision and reform of these long overdue.
In 2018, these uncontested, outdated laws were finally brought into discussion when the Council reconvened the DWP to review the MDPs.
The review was conducted in 2019 and 2020 and concluded with a recommendation to the Council for certain amendments prepared by the Australasian Parliamentary Counsel’s Committee be made to the MDPs.
Finally, on 1 July 2021, these changes came into effect in New South Wales (NSW), Victoria, South Australia and Queensland (QLD).
What are the main changes?
A large portion of the amendments to Australian defamation laws were modelled on the more recent UK Defamation Act 2013.
The most significant changes included:
- A new “serious harm” requirement. The new test reframes the tort of defamation to make it an element of the cause of action that the publication has caused, or is likely to cause, serious harm to the reputation of the person.
- Some new defences, including a new “public interest” defence
- Amendments to the way damages for certain kinds of nasty reputational damage are capped
- A new approach to limitation periods that takes account of the fact content remains online for years
The key takeaway from these reforms is that it is more difficult for individuals to make a defamation claim as they must now establish that they have suffered serious harm or serious financial loss, due to the defamatory publication.
It’s important to note that these changes will apply to defamatory matters published after the commencement of the MDAPs in each jurisdiction, so existing proceedings will continue under the existing regime.
How is the recent High Court decision of Voller reflected in the new defamation laws?
On 8 September 2021, by a 5:2 majority, the High Court delivered the landmark Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27 (Voller) decision.
The High Court dismissed an appeal by three Australian media organisations, finding that they were the publishers of third-party comments on their Facebook pages. A majority of the Court found that the media companies facilitate, encouraged and thereby assisted the posting of comments by third party Facebook users and that this rendered the media companies publishers of those comments for defamation purposes.
Despite the recent changes to Australian defamation laws already being in effect at the time this decision was reached, the High Court did not discuss nor reference these recent changes.
As such, there is a push for the upcoming Stage two of the MDP review to address the Voller decision. As a Channel 9 spokesperson states, “we are hopeful that Stage two of the review … will take account of the High Court’s decision and the consequences of that for the publisher.”
What happens next?
Given the Council’s stated intention to introduce the reforms quickly, we expect to see additional changes caused by Stage 2 of the reform being brought into effect in the very near future.