Posted on September 9, 2021 by Stuart Simington and 6

Defamation law reforms: What’s changed for public officials?

The Defamation Amendment Act 2020 (Amending Act) commenced operation on 1 July 2021. It represents the first stage of proposed reforms to defamation law.

The Amending Act significantly reformed the Defamation Act 2005 (Defamation Act). But how are these changes relevant to public officials? We explain in this blog post.

A new public interest defence

Most significant to public officials is the new section 29A. This provides:

‘It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter concerns an issue of public interest, and

(b) the defendant reasonably believed that the publication of the matter was in the public interest.‘

The court will be required to consider all the circumstances of the case. These include (but are not limited to):

• the seriousness of any defamatory imputation carried by the matter published;
• the extent to which the matter published distinguishes between suspicions, allegations, and proven facts;
• the extent to which the matter published relates to the performance of the public functions or activities of the person;
• whether it was in the public interest in the circumstances for the matter to be published expeditiously;
• the sources of the information in the matter published, including the integrity of the sources;
• if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);
• whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
• any other steps taken to verify the information in the matter published; and
• the importance of freedom of expression in the discussion of issues of public interest.

We expect the public functions and activities consideration (in bold above) to be the most significant for public officials.

However, we expect that the consideration about the extent to which a publication distinguishes suspicions, allegations, and proven facts will work against all except the most careful of defendants. For example, a person who broadcasts on social media that certain council officials are corrupt based only on a rumour about a controversial planning decision may well committing the tort of defamation, even though the matter relates to the performance of public functions by those council officials.

A new threshold of ‘serious harm‘

The Amending Act has also introduced (s10A) a new higher threshold of harm to reputation. To establish the tort, the plaintiff must show that the  ‘the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of that person‘.

The question is to be determined by a judge rather a jury. And parties will able to apply for this element of the cause of action to be determined before trial. We expect this to save significant time and costs in many of the less serious cases pursued against (or by) public officials.

Other relevant changes

The Amending Act has also introduced the following provisions relevant to public officials:

• a provision clarifying that the maximum amount of damages for non-economic loss will only be awarded in the most serious of cases;
• a new requirement that a concerns notice must be served with enough time for the other side to offer to make amends before a plaintiff can commence proceedings; and
• changes to the Limitation Act 1969 to include the single publication rule, which means the clock will start ticking from the first publication of allegedly defamatory material.

Future reforms

The NSW Attorney-General has indicated that this is only ‘Stage 1‘ of defamation law reforms to ‘update a defamation regime that was enacted before the social media revolution’. ‘Stage 2‘ is already well underway.

One issue which wasn’t addressed in the Amending Act was the way defamation law treats primary and secondary publishers, such as when a person makes defamatory comments on council social media platforms. We expect this to be resolved in the next stage of reforms.  This will be particular importance in light of the High Court’s ruling on 8 September 2021 confirming that a newspaper publisher operating a Facebook page is a publisher of the comments left by 3rd parties about the newspaper articles: see Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27.  We discussed the earlier NSW Supreme Court’s decision here,

You can view the Amending Act here. You can see the Defamation Act as it now appears here.

If you have any questions about this blog post, please contact Stuart Simington on 02 8235 9704 or Lachlan Penninkilampi on 02 8235 9719.