New era in defamation law

SPIRALLING defamation payouts for trivial cases largely spurred on by social media spats will come to an end and probably be settled in cafes, not court, under “parliamentready” draft laws expected to be ratified by states and territories next Monday.

For the past 18 months a NSW-led national working party has worked up a document, agreed to in principle by state and territory attorneysgeneral, to reform defamation laws to finally catch up with the digital age, which has prompted an explosion in people suing each other.

On Monday state and territory attorneys-general will meet online rather than in Hobart as planned due to COVID-19 restrictions, to give the final nod.

Under the changes, a 14-day

“concerns notice” period will be introduced to allow parties to come together and discuss remediation rather than rushing to court.

Plaintiffs will also have to prove a defined “serious harm” test for defamation to proceed, with the new laws to clarify what is in the public’s interest and the defence of contextual truth.

The laws also provide greater clarity for courts, which may award damages for non-economic loss up to a maximum amount, but without limiting the court’s power to award aggravated damages separately.

Limitation periods to bring actions will also be extended by 56 days to allow for greater pre-trial processes. A defence of “honest opinion” has also been strengthened.

NSW Attorney-General Mark Speakman said defamation laws had long proved a barrier to public interest journalism. The new regime would be “fit for purpose for our times” and include a new public interest defence test based on British legislation, with a chance to settle differences over coffee rather than in court.

“The reforms will also help to bring spiralling defamation payouts under control, unclog the courts from trivial cases, encourage plaintiffs to resolve cases without resorting to costly and stressful litigation and start the limitation clock at the first publication of a matter, rather than the potentially indefinite last click on a story,” Mr Speakman said.

He said a stage 2 reform already under way would clarify responsibilities and liabilities of internet platforms for online published material.

Facebook welcomed moves to modernise defamation laws.