Balancing Freedom of Expression and Political Communication — The New Model Defamation Provisions

Australia's defamation laws have long been criticised as being of little benefit. In Queensland, the Defamation Act 2005 (Qld) has been in effect since 2006 without any substantive amendments until now.

In that time, technology, telecommunications and the way we consume information has changed exponentially, together with the means by which defamatory material can be published via Facebook, Instagram and other social media platforms. The way material is published is no longer restricted to news and media articles, and careful thought must be given to the content of comments and posts on social media.

Recent amendments to the Act, which came into effect on 1 July 2021, sought to strike a balance between freedom of expression and individuals' rights with the inclusion of:

1. a new public interest defence;
2. a scientific or academic peer review defence;
3. a serious harm element; and
4. steps to encourage the early resolution of disputes prior to commencing proceedings and before attending trial.

These changes have also implemented strict time limits which can have consequences for plaintiffs and publishers alike.

History of the Uniform Defamation Laws

Over 15 years ago, the Attorney-General of each State and Territory agreed to support the enactment of the Uniform Defamation Laws (the Model Defamation Provisions), which underpinned and formed the template for defamation laws in their respective jurisdictions. In Queensland this led to the enactment of the Act, which came into effect on 1 January 2006.

The changes to the Model Defamation Provisions are well overdue, having not been amended since their creation in 2005 — when Facebook was only a year old and Twitter and Instagram did not yet exist. In this ever-changing world there are consequences for publications that can spread like wildfire, affecting reputations worldwide.

Recent changes

In an attempt to provide greater clarity for community publishers, the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) was introduced to the Queensland Parliament. Changes to the Act include:

1. A new public interest defence, which arises where the matter concerns an issue of public interest and the defendant reasonably believed that the publication of the matter was in the public interest.
2. A new scientific or academic peer review defence for material published in scientific or academic journals relating to a scientific or academic issue.
3. A requirement for a serious harm element. The plaintiff is required to prove that publication of the defamatory material has caused, or is likely to cause, serious harm to their reputation. Excluded corporations — where objects do not include obtaining financial gain, or where there are fewer than 10 employees, and organisations which are not a public body — must instead prove that the material has caused, or is likely to cause, serious financial loss. The judicial officer is to determine whether there is a serious harm element as soon as practicable before the commencement of trial, unless satisfied there are special circumstances for postponing that determination.
4. The issuing of a Concerns Notice prior to going to court, which must state, among other things, the specific location where the defamatory material can be accessed, and inform the publisher of the serious harm element.
5. That an offer to make amends made by the publisher must be open for acceptance for at least 28 days.
6. Amendments to the defence of failure of the aggrieved person to accept a reasonable offer, specifying a strict timeframe for a publisher to make a reasonable offer to make amends within 14 days of receipt of further particulars to the Concerns Notice, or otherwise within 28 days of receipt of the Concerns Notice.
7. Clarification of the cap on damages for non-economic loss, which applies regardless of whether aggravated damages are awarded, with aggravated damages to be awarded separately. The amendments also restrict the cap to the most serious cases.

What these changes mean

The drafting of the new public interest defence — modelled on, and comparable with, the Defamation Act 2013 (UK) — and the new scientific and peer review defence are intended to reduce unreasonable restrictions on freedom of expression.

The amendments also aim to bring about the early resolution of defamation disputes prior to issuing proceedings, and to streamline proceedings by determining the new serious harm element before trial. The serious harm element should therefore be analysed by prospective plaintiffs prior to issuing a Concerns Notice and proceedings, and should cause publishers to pause before publishing and to seek advice following receipt of a Concerns Notice.

Some amendments impact the rights and liberties of individuals, such as the strict requirements surrounding the issuing and drafting of Concerns Notices, the timeframe to respond to a further particulars notice, and the timeframe by which offers to make amends are issued.

If the Concerns Notice is not drafted in accordance with the Act and a further particulars notice is issued by the publisher, the prospective plaintiff must respond within 14 days, otherwise the Concerns Notice will be taken not to have been issued. This will impact the prospective plaintiff's ability to commence proceedings unless leave is granted by the court. Also, if an offer to make amends is not made within the time required, the publisher will be unable to rely on the defence for failure to accept an offer. It is therefore critical that Concerns Notices are articulated clearly, and that prospective plaintiffs consider obtaining legal advice prior to issuing any notice.

Prospective plaintiffs should also be mindful of the single publication rule — where there is deemed to be only one cause of action for defamation regardless of multiple defamatory imputations — applied in context with the one year limitation period from the date of publication. As time limits expire quickly, prospective plaintiffs should act promptly as soon as they become aware of the defamatory publication and seek advice to protect their rights.