DEFAMATION LAW UPDATE
April 2006
From 1 January 2006, new uniform defamation laws came into effect in most states and territories of Australia. The relevant Act in NSW is the Defamation Act 2005. This is a summary of the key changes effected by the new legislation.
Defence of Truth and a Possible Tort of Wrongful Invasion of Privacy
The defence of truth no longer requires a defendant to prove that the publication in question was also in the public interest. It is now a complete defence to prove that the allegation made is substantially true. In the past, the publication of allegations which have related purely to a person’s private life has not been regarded as being in the public interest, and has prevented publishers from relying on the defence of truth. The legislative changes could widen the scope for a publisher to rely on the defence of truth, particularly in the areas of gossip and celebrity journalism.
The effect of this change may however in the future be off-set by the development of a right to privacy, either through the common law, or through further legislative enactment. Australia has to date not recognized an individual’s right to privacy per se, however in 2002 the High Court left the door open for a court to find, in appropriate circumstances, that a tort of wrongful invasion of privacy may exist. Subsequently a single judge in a District Court case in Queensland has held that such a tort does in fact exist. It remains to be seen whether that reasoning will be confirmed by higher, more authoritative courts.
Offer of Amends
The new law provides for a publisher to make an “offer of amends” within 28 days of receiving a complaint from a person who has allegedly been defamed. The offer must include an offer to publish a correction and pay expenses incurred by the person, and may also include an offer to publish an apology and compensate the person for any loss suffered. If the person rejects the offer, in circumstances where it is subsequently held that the offer was reasonable, it can act as a full defence.
Innocent Dissemination
The defence of innocent dissemination, which applies, for example, to newsagents, bookshops and ISPs has also been enshrined in the legislation. It is worth noting that an element of this defence is that the person concerned did not know that the subject matter was defamatory. This means that once alerted to the defamatory nature of the content, the defence will be lost. This has implications for ISPs, for example, who receive a letter of demand requiring them to take down defamatory matter posted on the Internet.
Companies Cannot Sue for Defamation
While significant limitations on the ability of companies to sue for “corporate defamation” already existed in NSW, this has now been made uniform Australia-wide, making it very difficult for a corporation to sue in defamation where its business reputation has been defamed. In certain circumstances, company officers may have a cause of action personally if they are identifiable in the allegations made.
Juries
The role of juries has been expanded and it is likely that most defamation cases in NSW will in future be tried by jury. This could have implications for plaintiffs who, for example, have an unfavourable public reputation, and whose prospects under a jury trial might be correspondingly less.
Damages
While general damages have been capped at $250,000.00 under the legislation, plaintiffs can still claim “aggravated” damages, which have no limit. Aggravated damages can, amongst other reasons, be awarded because a publication was reckless, because a publisher failed to make proper enquiries, or even because a publisher failed to make apologies.
Limitation Period
Claims in all jurisdictions must now be brought within 12 months of publication. This reinforces the need for a plaintiff to take action swiftly. In the absence of a compelling reason, delay in taking action may be seen as a factor weighing against the seriousness of the allegation, and may mitigate the amount of any damages awarded.
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Gray & Perkins Lawyers
Level 7, 55 Clarence Street
Sydney NSW 2000
Ph: +61 2 9290 2999
Fax: +61 2 9290 3628
Mathew Alderson, Partner
Direct dial: +61 2 8235 1204
Email:
Peter Karcher, Senior Lawyer
Direct dial: +61 2 8235 1218
Email:
www.grayperkins.com.au
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